THE STATE OF WESTERN AUSTRALIA -v- KYLES [No 5] [2020] WASC 265 (14 July 2020)

1. Section 8(4A) of the Act provides:

If ‑

(a) an offender is subject to a supervision order (the current order); and

(b) the current order is to expire within one year,

the DPP may file with the Supreme Court an application for orders under section 14 and for a Division 2 order in relation to the offender, the Division 2 order to take effect on the expiry of the current order.

1. 'Division 2 order' is defined in s 3 of the Act to mean either a continuing detention order made under s 17(1)(a) or a supervision order made under s 17(1)(b) of the Act.[10] More specifically, s 17 provides:

(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -

(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b) order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.

1. The reference to 'offender' in s 8(4A) of the Act is curious. Section 3 provides that 'offender' has the meaning given to that term in s 8(1). Section 8(1) in effect defines 'offender' to mean a person:

(a) who is under a custodial sentence for a serious sexual offence; or

(b) who has been under a custodial sentence for a serious sexual offence and who, at all times since being discharged from that sentence, has been under a custodial sentence for another offence or other offences.

1. A person who is subject to a supervision order does not come within that definition, which, from its context, is intended to apply to a person who is in custody and in respect of whom an application for a div 2 order is made for the first time. The definition is concerned with a person who is subject to a custodial sentence at the time the application is made and has been subject to a continuous period of custody that includes a custodial sentence for a serious sexual offence. Elsewhere in the Act, a person who is subject to a supervision order is referred to as 'the person who is subject to the order' or 'person subject to the order'.[11] In s 41 and s 42 that term is used in contradistinction to 'offender' in the phrase 'the offender or person subject to the order'. Further, all of the provisions concerning the conditions of a supervision order refer to 'person' rather than 'offender'.[12] However, s 17(1)(b), under which a supervision order is made, refers to 'the offender, when not in custody' being subject to stated conditions. In addition, 'offender' is used in s 27A(5) to refer to a person who is not in custody and to whom pending proceedings under s 8(1) or s (4A) relate, in the context of provisions for the making of interim supervision orders.
2. The obvious purpose of s 8(4A), confirmed by the second reading speech in Parliament in respect of the Dangerous Sexual Offenders Legislation Amendment Bill 2015, which introduced the provision, is to enable the continued protection of the community from the unacceptable risk that may continue to exist at the expiration of a supervision order, that the person who is subject to the order would commit a serious sexual offence, if not subject to a continuing detention order or a supervision order.[13] Having regard to that context, the word 'offender' must be taken to refer to a person who is subject to a supervision order who was an 'offender', as defined in s 8(1) at the time the original application was made for a Division 2 order.
3. On that basis, s 8(4A) applied to the respondent. That was not in issue at the hearing of the application. Further, both of the conditions specified in pars (a) and (b) of s 8(4A) were met when the application was made on 7 February 2018.
4. Section 8(4B) provides that the application must specify which of the Division 2 orders is sought. As stated earlier, the applicant seeks a further supervision order.
5. As the application under s 8(4A) is for a Division 2 order, the provisions of div 2 of the Act apply. Those provisions concern:

(4) the inclusion of a curfew requirement (s 19B); and

(5) the enforcement of electronic monitoring and a curfew requirement (s 19C).

1. The effect of s 8(4A) in combination with s 14 and s 17 of the Act is that an application for a further supervision order comes to be dealt with in the same manner as an application in the first instance for a Division 2 order under s 8(1).[14] In that regard, I respectfully adopt what was said by Jenkins J in Narkle [No 5] concerning the effect of the statutory provisions and the principles that are applicable on an application under s 8(4A), although at the time that case was decided, the subsection provided only for an application for a further supervision order under s 17(1)(b), rather than for 'a Division 2 order' (the particular order to be specified in the application), as is now the case. In my opinion, the amendments which effected that change, which came into effect on 29 March 2018,[15] do not affect the application of the general principles discussed by Jenkins J in Narkle [No 5]. There are, however, issues that arise from the amendments that I will refer to below.
2. In accordance with the provisions of s 17(1) (set out in [15] above), before a supervision order can be made under that section, the court must be satisfied that the offender is a serious danger to the community. As the applicant acknowledged in these proceedings, it cannot be assumed on an application under s 8(4A) that, because the respondent has previously been found to be a serious danger to the community, he remains a serious danger to the community when the application comes to be determined. That issue must be decided afresh, on the evidence available at the div 2 hearing. However, in my opinion, as will appear below, the fact that such a finding was made previously and the foundations for that finding are part of the respondent's antecedents, which are a relevant consideration in determining whether the respondent is a serious danger to the community.
3. Prior to the amendments effected by the Dangerous Sexual Offenders Legislation Amendment Act 2017, the previous s 17(3) provided that 'a court hearing an application for a further supervision order under s 8(4A) must not make an order under subsection (1)(a)' (ie, a continuing detention order). That was in the context that s 8(4A) provided that an application under that provision was only for a further supervision order, which was the context that applied in Narkle [No 5]. Subsection (3) of s 17 was deleted by the amending legislation and new subsections (3) and (4), which apply in these proceedings, were inserted as follows:

(3) A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.

(4) The onus of proof as to the matter described in subsection (3) is on the offender.

1. On the face of it, the deletion of the previous s 17(3) might suggest that the prohibition in that subsection preventing the court from making a continuing detention order, when the application is for a further supervision order, no longer applied. That would beg the question why the applicant is required by s 8(4B) to specify which order is sought. Although the second reading speech in respect of the bill that introduced the amendments did not comment on the deletion of the previous s 17(3),[16] the Explanatory Memorandum for the bill explained that the subsection was deleted 'as a consequence of the amendments proposed in clause 14', which amended s 8(4A) and introduced subsection (4B). In other words, it appears to have been intended that the requirement that the DPP specify which of the Division 2 orders it is seeking would obviate the need to prohibit the court from making a continuing detention order when a supervision order is sought, presumably on the basis that the court would be confined as to the order it could make by the DPP's particularisation. Whether that is achieved by s 8(4B) may be debatable, but it is not necessary to consider that issue further in the context of this case.
2. However, a matter that potentially does create a problem, in the context of an application under s 8(4A) for a further supervision order, is the requirement under the new s 17(3) that a court must be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order, before it can make such an order. If the court cannot make a Division 2 order other than the one specified by the DPP in the application, the requirement under s 17(3) theoretically leaves open the possibility that, in a case where the DPP applies for a further supervision order, the court may be satisfied the respondent is a serious danger to the community, yet not be satisfied the respondent would substantially comply with the standard conditions of a supervision order, leaving no means by which to protect the community against the danger. Such a situation may never arise in practice, as the existence of any evidence that would suggest the respondent would not substantially comply with the standard conditions of a supervision order, notwithstanding that he has been on a supervision order, is likely to result in the DPP applying for a continuing detention order. However, the potential anomalous consequence of the interaction of the new provisions, which I have identified, is logically open. It appears to be an unintended consequence that may have been overlooked. Ultimately, it does not affect the outcome of these proceedings, because the evidence supports the conclusion that the respondent will substantially comply with the standard conditions of a supervision order, if such an order is otherwise appropriate. In that regard, I have applied the principles that I consider to be applicable in determining whether a respondent will substantially comply with the standard conditions of a supervision order, as discussed by me in Director of Public Prosecutions (WA) v Hart.[17]
3. Section 10 of the Act relevantly provides that an application under s 8(4A) may proceed and a further supervision order may be made even if, while the application is pending, the respondent ceases to be subject to the original supervision order. That would have been the case in this matter, but for the fact that an interim supervision order was made under s 27A. It is sufficient for present purposes to note that s 27A empowers the court to make an interim supervision order, the effect of which is to extend an existing supervision order when a person who has been subject to such an order would be in the community without being subject to conditions pending the determination of an application under s 8(4A). There is a question as to whether s 27A was also intended to overcome another anomalous effect of the then current statutory provisions identified by Jenkins J in Narkle [No 5],[18] whereby any new supervision order was to take effect on the expiry of the 'current order' (s 8(4A)), but, at least on one construction, could not take effect until 'a stated date not earlier than 21 days after the date the order is made' (s 17(1)(b) ‑ see [15] above). I will deal with that question of construction later in the context of determining the commencement date of the supervision order. However, if the construction adopted in Narkle [No 5] is correct, an interim supervision order ensures that a person who has been found to be a serious danger to the community in proceedings under s 8(4A) and s 17, is not in the community without supervision and monitoring for the period before the new supervision order comes into effect.
4. The requirement under s 17(1) that the court must find the respondent to be a serious danger to the community, before a further supervision order can be made, engages the provisions of s 7 of the Act.
5. In accordance with s 7(1) of the Act, a finding that the respondent is a serious danger to the community will follow necessarily in the circumstances of this case if the court is satisfied that there is an unacceptable risk that, if the respondent were not subject to a supervision order, he would commit a serious sexual offence.[19]
6. The applicant has the onus of satisfying the court of the matters in s 7(1), and the court must be satisfied (a) by acceptable and cogent evidence, and (b) to a high degree of probability.[20]
7. The standard of proof to a 'high degree of probability' is higher than the civil standard, being proof on the balance of probabilities, but lower than the criminal standard, being proof beyond reasonable doubt.[21]
8. Section 4A of the Act provides relevantly that a person commits a serious sexual offence if the person does an act that constitutes a serious sexual offence.
9. The term 'serious sexual offence' is defined in s 3 of the Act, relevantly to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (Evidence Act). Section 106A of the Evidence Act, read with pt B of sch 7 of the same act and the Criminal Code (WA) (Criminal Code), provides that serious sexual offences are any of the offences contained in ch XXXI of the Criminal Code, the penalty for which is 7 years' imprisonment or more. Chapter XXXI of the Criminal Code is headed 'Sexual Offences' and contains the majority of offences of a sexual nature. Relevantly for present purposes, the offences contained in ch XXXI which would fall within the definition of a 'serious sexual offence' include all sexual offences against children under the age of 13 years and all sexual offences by a person over the age of 18 years against a child between the ages of 13 and 16 years.
10. Section 7(3) of the Act provides that in deciding whether to find that the respondent is a serious danger to the community, I must have regard to the following matters:

(a) any report that a psychiatrist prepares as required by s 37 for the hearing of the application, and the extent to which the person cooperated when the psychiatrist examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;

(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;

(i) the need to protect members of the community from that risk; and

1. In an application under s 8(4A), the considerations in pars (c) ‑ (g) of s 7(3) will be informed in part by the evidence and findings made in past proceedings against the respondent under the Act, in particular the proceedings that resulted in the respondent being released subject to the original supervision order. Although the assessment of whether the respondent is a serious danger to the community must be made having regard to the evidence concerning the respondent's risk at the time the application is heard, the assessment of that risk may depend on whether there have been changes in the respondent's personal circumstances and attitudes, and the extent of any such changes, since he was placed on the original supervision order.
2. In Williams[22] Wheeler JA (Le Miere AJA agreeing) considered what was meant in s 7(1) by the words 'unacceptable risk'. In a passage that was subsequently approved in GTR,[23] her Honour said:[24]

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

1. Having regard to the relevant statutory provisions and the principles I have outlined, the issues I must determine are as follows:

(1) Is the respondent a serious danger to the community, in that there is an unacceptable risk that, if he were not subject to a further supervision order, he would commit a serious sexual offence?

(2) If so, what are the appropriate conditions and length of a further supervision order?

1. The first issue requires consideration of the matters in s 7(3) of the Act. I intend to deal with those matters in chronological order, commencing with (i) the respondent's background, in particular his sexual offending, followed by (ii) the findings in the previous decisions in respect of his risk, (iii) his conduct while subject to the supervision order, (iv) the evidence in respect of developments in his circumstances since he was released on the supervision order and (v) the opinions expressed in respect of his current risk in the present proceedings.
2. The determination of the second issue will be informed by the most recent psychiatric, psychological and other assessments.
3. It is convenient to deal with some of the matters in s 7(3) under separate headings, but a number of the matters overlap and will be dealt with as part of the background and the previous findings. That history, which encompasses the respondent's antecedents and criminal history (s 7(3)(g)) and includes prior psychiatric and psychological assessments (s 7(3)(b)), necessarily deals with matters in s 7(3)(c) ‑ (g), being the respondent's propensity to commit serious sexual offences, his pattern of offending, the treatment and rehabilitation he has undergone, and his antecedents and criminal history.

1. The evidence in the hearing consisted of a book of materials tendered by the applicant without objection and the oral evidence of two consultant forensic psychiatrists, Dr Peter Wynn Owen and Dr Gosia Wojnarowska, and a senior community corrections officer (SCCO) with the Community Offender Monitoring Unit of the Department of Justice (COMU), Ms Kimberley Comery, who has been the respondent's community corrections officer (CCO) providing supervision while he has been in the community subject to the supervision order.
2. The book of materials includes:

(b) the previous decisions of the court under the Act, to which I have referred above;

(c) materials in respect of the prosecution of the respondent for sexual offences on three indictments in 2003, including the statements of complainants, a transcript of a video record of interview conducted with the respondent in October 2002, reports prepared for sentencing proceedings in 2003, and transcripts of the sentencing proceedings;

(d) the psychiatric and psychological reports prepared for the proceedings under the Act in 2011, 2012 and 2013, including a psychiatric report of Dr Wojnarowska dated 27 April 2011 and a report concerning the respondent's completion of an Intensive Sex Offender Treatment Program dated 18 June 2012;

(e) materials concerning contraventions by the respondent of conditions of the supervision order in 2016 and 2017;

(f) a psychological update report by Dr Tara Yewers dated 26 June 2017, which deals with the respondent's psychological developments since he was released on the supervision order;

(g) a report dated 2 October 2017 of SCCO, Ms Aletheia Yun, in respect of the respondent's performance, in terms of his conduct generally whilst in the community and his compliance with the conditions of the supervision order;

(h) materials concerning the proceedings in the District Court in December 2018 for the new charges in respect of which the respondent was acquitted after trial;

(i) a community supervision assessment report dated 28 March 2019, prepared by Ms Comery; and

(j) psychiatric reports prepared by Dr Wynn Owen and Dr Wojnarowska for these proceedings, dated 2 April 2019 and 30 March 2019 respectively.

1. The respondent's background and the views of various experts who provided reports and gave evidence about him before he was released on a supervision order by Jenkins J on 6 June 2013 are set out in the decisions of Commissioner Sleight in Kyles, Hall J in Kyles [No 2] and Jenkins J in Kyles [No 3]. It was not in dispute in these proceedings that those decisions accurately reflect the respondent's background and the opinions of others which formed the foundations for the finding that he was a serious danger to the community and the orders that were made in each of those decisions. Consequently, I will take into account the factual matters and opinions referred to in those decisions, and the findings made by each of the judges, as part of the respondent's antecedents and as material that informs the considerations in s 7(3)(c) ‑ s 7(3)(f) of the Act. It is necessary to have regard to those previous decisions to understand the reasons that follow. I do not intend to repeat all that was said in those decisions, but for convenience I will summarise salient aspects. As Commissioner Sleight did in Kyles, I will start with the respondent's history of sexual offending.

1. The respondent was born in October 1951 and is now 68 years of age. He started committing sexual offences when he was 18 years of age. His offending history was summarised by Commissioner Sleight in Kyles.[25] Over a period of more than 20 years from 1970, when he was 18 years of age, the respondent committed numerous serious sexual offences against a total of 12 victims, being girls and boys ranging from 3 to 15 years of age. The victims included [suppressed]. The offences were mainly in the nature of indecent dealings and sexual penetrations of the victims.
2. In Kyles, Commissioner Sleight summarised the offending by reference to the charges in respect of which the respondent was convicted and sentenced. His Honour did so in the chronological order of the convictions, rather than the offences. His Honour suppressed certain details of the offending so as to protect the identity of the victims. For the purpose of these proceedings, I have had access to, and taken into account, an un‑redacted version of his Honour's reasons, and it is to that version that I refer below. However, so as to maintain the protection of the identity of the victims, references in these reasons which may identify them will also be suppressed.
3. The respondent was convicted and sentenced in respect of sexual offences on ten occasions, the last being in the District Court on 18 July 2003. Some of the later convictions related to historical offences, in the sense that they had occurred well before other offences for which he had already been convicted and sentenced. It is also apparent from the summary and the respondent's criminal record that he committed a number of sexual offences while on probation after having been convicted of earlier sexual offences against children, and that he continued to commit serious sexual offences against children after he had served a sentence of 9 months' imprisonment in 1986 for sexual offending that occurred in 1985 and 1986 (see [47(10)] below).
4. The following outline, adapted from the reasons of Commissioner Sleight in Kyles, places the respondent's offending in chronological order. I have noted where the sexual offending occurred while the respondent was on probation or after he had served a term of imprisonment. The outline focuses on the sexual acts, rather than the statutory descriptions of the offences constituted by those acts, some of which (as well as the statutory penalties) changed over time. The offending consisted of the following conduct:

(1) The respondent committed his first sexual offence on 5 February 1970, when he picked up a 10‑year‑old boy in a motor vehicle, drove the vehicle to a remote location and there, in the back seat of the car, placed his penis between the boy's legs. The respondent was convicted of this offence in the Children's Court on 25 February 1970 and was placed on 3 years' probation.

(2) Between 13 July 1972 and 20 July 1972, when the respondent was 20 and was on probation for the first offence, he masturbated and then anally penetrated a 12‑year‑old boy. [Suppressed]. He was convicted of those offences in the District Court in May 1997 on an indictment that also charged later offences.

(3) Also in 1972, again while he was on probation for the first offence, the respondent committed an offence in which he penetrated the anus of a 15‑year‑old boy with his penis. He was convicted of that offence in February 2003.

(4) Between 1 January 1973 and 31 December 1973, when he was 21 or 22, the respondent sexually offended against a 10‑year‑old girl, [suppressed], by penetrating her vagina with his penis on two occasions on consecutive days. He was convicted of those offences in November 1995.

(5) In August 1980, when he was 28, the respondent engaged in sexual touching of a 6‑year‑old boy, a 7‑year‑old girl and a 3‑year‑old girl, on the same occasion. He was convicted of those offences on 12 September 1980 and was sentenced to 2 years' probation.

(6) Between 1979 and 1982 the respondent persistently offended against [suppressed] who was aged between 5 and 8 years of age, by engaging in acts of penile-anal penetration, digital penetration and fellatio. It would appear that at least some of the offences were committed while he was on probation for the offences committed in August 1980. He was convicted in February 2003 of 13 sexual offences arising from the sexual abuse of [suppressed].

(7) On two separate dates in 1982 the respondent offended against a 9‑year‑old boy [suppressed]. On both occasions the respondent penetrated the boy's anus with his penis. He was convicted of that offending in August 2002.

(8) Between 1982 and 1985 the respondent persistently offended against [suppressed] who was aged between 6 and 8 years. In relation to that offending, he was convicted in February 2003 of ten sexual offences arising from four separate incidents, which included penile-vaginal penetration on each occasion.

(9) Also between 1982 and 1985 the respondent offended against [suppressed], when she was aged between 4 and 7 years. The offending included penile-vaginal penetration and making the child and her brother [suppressed] engage in sexual acts with one another and with the respondent at the same time. The respondent was convicted of those offences in July 2003.

(10) In the period between 1 September 1985 and 11 February 1986, the respondent committed five offences of indecently dealing with a child under the age of 14 years. The victims were [suppressed], both of whom were 9 years old. The indecent dealing included acts of oral sex. The respondent was convicted of that offending on 18 February 1986, and was sentenced to 9 months' imprisonment. It was the first sentence of imprisonment for his sexual offending.

(11) Between 1 November 1985 and 31 December 1985, the respondent committed a number of acts of indecently dealing with [suppressed], who was aged 7 at the time. He was convicted in the Children's Court[26] in May 1987 of five counts of indecently dealing with a child under the age of 16 years and was placed on probation for 18 months.

(12) The next two sexual offences occurred some months apart in 1990 and were committed against a 9‑year‑old girl [suppressed]. The offending consisted of digital penetration and the touching of the girl's vagina. That same year the respondent offended against an 11‑year‑old boy by touching the boy's buttocks or penis on three separate occasions. The offending that year and all of the respondent's subsequent sexual offending occurred after he had served the sentence of imprisonment of 9 months in 1986 and after completing a period of probation in 1987 and 1988. He was convicted of the 1990 offending on 27 May 1997.

(13) Between 1 December 1991 and 6 May 1992, the respondent committed a number of acts of sexual penetration of a 9‑year‑old girl who was [suppressed] and indecently dealt with an 8‑year‑old girl [suppressed]. The sexual penetrations were committed over a period of time. On 7 December 1992, the respondent was convicted in the Supreme Court of ten counts of sexual penetration of a child under the age of 16 years and one count of indecently dealing with a child under the age of 13 years in respect of that offending. He was sentenced to a term of imprisonment of 9 years and 2 months.

1. The respondent remained a sentenced prisoner from the time he was sentenced in December 1992 until the original application was made under the Act in 2011, a period of more than 18 years. That was as a result of additional complaints being made after December 1992 in respect of earlier offending, as outlined above, and charges being laid which resulted in convictions and further sentences of imprisonment being imposed. In summary:

(1) On 15 November 1995 the respondent was sentenced in the Supreme Court at Bunbury, in respect of the offending in 1973, to a term of imprisonment of 4 years and 6 months concurrent with existing sentences;

(2) On 27 May 1997 he was sentenced in the District Court at Bunbury, in respect of the offending that occurred between 13 July 1972 and 20 July 1972 and in 1990, to 6 years' imprisonment cumulative on the 1992 sentence;

(3) On 7 August 2002 he was sentenced for the 1982 offences to 18 months' imprisonment cumulative on the terms he was then serving;

(4) On 20 February 2003 he was sentenced in the District Court, in respect of offences committed in 1972, between 1979 and 1982, and between 1982 and 1985, to 6 years' imprisonment cumulative on terms he was then serving; and

(5) On 18 July 2003 he was sentenced in the District Court, in respect of offences committed between 1982 and 1985, to a total effective term of 5 years' imprisonment cumulative on the terms he was then serving.

1. As the respondent's risk of sexual reoffending is being assessed after a significant period of being in the community, subject to a supervision order, the assessment will largely be informed by his conduct while subject to the order and his current circumstances and attitudes. However, as will appear below, those matters continue to be informed, at least to some extent, by the respondent's past. Therefore, I will outline some salient aspects of his background apart from his offending.
2. The respondent was born in 1951 and was raised in Western Australia. His parents had emigrated from the United Kingdom. He has an older brother. He had an unhappy childhood. He has described both parents as being alcoholics and has said that his father was physically abusive to his wife (the respondent's mother) and to the children (the respondent and his brother) when disciplining them.
3. The respondent was sexually abused by a male adult stranger when he was 12 years old.
4. The respondent disliked school, where he says he was singled out for being of small build. He has said he truanted from High School because of anxiety. He left school at the age of 15 years and worked in unskilled labouring jobs. However, he also became involved in coaching children in various sports. It will be recalled he offended against a child he was coaching in 1972.
5. The respondent married when he was 24, after his partner had become pregnant early in their relationship. They had five children together. The marriage ended in 1985. He had custody of the two oldest children. The other three stayed with their mother. He has said he was hurt when he found out his wife was seeing another man soon after their separation.
6. Some years later the respondent formed a relationship with a woman who had children. She and the children were living with him when he was imprisoned in 1992. She stopped visiting him soon after he was imprisoned, but her friend, Ms H, remained friends with the respondent. They have maintained that relationship since that time. It is not a sexual relationship.
7. The respondent has a history of alcohol abuse and dependence, having commenced drinking in early adolescence and drinking to excess by late adolescence. He has previously reported that intoxication with alcohol had the effect of increasing his libido.[27] He had a long period of enforced abstinence during his incarceration from 1992 to 2013.

Findings in previous hearings 2011 - Div 2 proceedings

1. In the div 2 proceedings conducted in 2011,[28] the respondent's risk of sexual reoffending was assessed by two consultant forensic psychiatrists, Dr Wojnarowska and Dr Hall, both of whom I have mentioned above. Commissioner Sleight relied on their evidence, in the light of all the other material before his Honour, to conclude that the respondent was a serious danger to the community.[29]
2. Both psychiatrists found that the respondent met the diagnostic criteria for paedophilia, and diagnosed him with that disorder.[30] Both also diagnosed him with having alcohol dependency. Dr Wojnarowska further diagnosed the respondent as having an antisocial personality disorder. Dr Hall did not go so far as to diagnose such a disorder, but he found that the respondent had antisocial personality traits. Finally, Dr Hall (but not Dr Wojnarowska) diagnosed the respondent as having a social anxiety disorder.
3. Dr Wojnarowska and Dr Hall differed in their assessment of whether the respondent met the 'cut‑off' score for the presence of psychopathy, based on the Hare Psychopathy Checklist‑Revised (PCL‑R) test. However, it appears that in Dr Wojnarowska's opinion the important consideration was that, whether or not he met the 'cut‑off' for the presence of psychopathy, the respondent's high score, alongside the presence of deviant sexual interests, indicated a high risk of future offending.[31] Dr Wojnarowska had noted that the respondent had not shown concern towards his victims, was not prepared to accept the facts related to the physical consequences of sexual penetration of a child, and demonstrated no insight into the possible psychological damage to a child from such offending.[32]
4. Dr Wojnarowska was of the opinion that the respondent posed a very high risk of sexual reoffending if not subject to an order under the Act, and her view was that the only feasible way of protecting the community at that stage was a continuing detention order.[33]
5. Dr Hall was of the opinion that the respondent posed a high risk of sexual reoffending if not subject to an order. He identified a number of factors that gave rise to that risk, including the respondent's 'history of persistent, diverse and depraved sexual offences against children', the diagnosis of paedophilia, the respondent's non‑participation in sex offender treatment, persistent cognitive distortions that justified sexual activity with children, his vulnerability to alcohol abuse and lack of insight in that regard, and 'his capacity for grooming children and adults, so as to establish relationships that provide trust and proximity to children'.[34]
6. The respondent was considered by the psychiatrists to have significant treatment needs. That had been identified earlier by psychologists who had provided reports in 2002 and 2003. They had noted his limited insight and failure to acknowledge fully his responsibility for his offending and the extent of his problems.[35] That was notwithstanding the fact that he had pleaded guilty on each of the occasions he had been charged. Commissioner Sleight noted that some insight into the respondent's personality traits and his treatment needs was revealed by his background. His alcohol abuse could be explained by the fact that he was raised in a family in which both parents were alcoholics and exposed him to alcohol abuse. His Honour also relied on Dr Wojnarowska's opinion that the development of the respondent's deviant sexual interest in children was undoubtedly influenced by the fact he too was sexually abused as a child.[36]
7. Commissioner Sleight accepted that the respondent had shown a callous disregard for his victims and that, until his sexual deviancy was treated by way of an intensive sexual offender treatment programme, he would continue to have a propensity to commit serious sexual offences in the future.[37]
8. The respondent's readiness and ability to engage in treatment had been regarded as being questionable.[38] He had resisted intensive group treatment for a long time.[39] Commissioner Sleight noted the respondent's explanation to be that he believed he could not function in a group environment as 'he becomes too tense and nervous in such a situation'. His Honour accepted Dr Hall's view that the respondent 'suffers from a social anxiety disorder which makes it difficult for him to participate in group therapy'.[40]
9. Both psychiatrists were of the view that the optimum form of treatment was intensive group therapy.[41] They acknowledged that treatment could be provided on an individual basis, but were of the view that it would be less effective. Dr Hall recommended that the respondent be given antidepressant medication and undergo counselling to address his social anxiety disorder, and if sufficient progress was made, his treatment could be 'progressed to group therapy'.[42] A psychologist from the Department of Corrective Services subsequently gave evidence that if an assessment of the respondent confirmed the diagnosis of social anxiety disorder, a programme could be implemented on an individual basis to address that disorder, as recommended by Dr Hall.
10. Commissioner Sleight concluded that a continuing detention order was necessary for the following reasons:[43]

I conclude that on the evidence before me that until Mr Kyles has completed an intensive sex offender treatment programme and has made progress in relation to his paedophilic tendencies, it is inappropriate to make a supervision order. Until Mr Kyles receives such treatment, to release him on a supervision order would pose an unacceptable risk to the community. I reach this decision reluctantly as Mr Kyles has spent nearly 20 years in prison.

1. The continuing detention order was made on 16 May 2011.

First review of the continuing detention order - 24 May 2012

1. By s 29 of the Act, it was necessary for the continuing detention to be reviewed as soon as practicable after the expiry of one year under the order. Upon such a review the court must determine whether the person who is subject to the order remains a serious danger to the community. If so, then (as the legislation was formulated in 2012) the court was required either to expressly decline to rescind the detention order or to rescind the order and make a supervision order if the latter would provide adequate protection of the community.[44] The legislation has at all times provided that, if the court is not satisfied the person remains a serious danger to the community, it must rescind the detention order.
2. When directions were sought by the DPP for the first review, in February 2012, the respondent was enrolled in an intensive sex offender treatment programme, which was to conclude in mid‑July 2012. It appears, therefore, that he had progressed as suggested by Dr Hall. As the programme would not be completed before the first review was required to be conducted, it was agreed between the parties that the review, which was conducted before Hall J, should be conducted on the papers and that no psychiatrist be appointed for the purposes of the review. That agreement was reached on the basis that the DPP would not oppose an application for an exceptional circumstances review under s 30 of the Act, which would leave open the possibility of the respondent applying to the court for a review of his detention after the completion of the treatment programme and prior to the next scheduled hearing.[45]
3. On 24 May 2012, the evidence in the review proceedings before Hall J included a treatment assessment report by Mr David Summerton, a psychologist, and a psychological assessment by Mr Nigel Cameron, a clinical and forensic psychologist.
4. Hall J summarised the psychological assessment as follows:[46]

Mr Cameron's report concludes that the respondent has shown solid improvement in the previous 12 months. This was reflected in his willingness to participate in a treatment program. However, whilst he had shown increased capacity for understanding treatment concepts, Mr Cameron concluded that the respondent would need considerable guidance and support in making treatment gains and translating them into tangible application in real life. In particular, the respondent was not yet able to identify concrete strategies for identifying risk scenarios or removing himself from them.

1. Reports from the Department of Corrective Services confirmed that the respondent was continuing to participate in an intensive sex offender treatment programme, with an expected completion date of 1 June 2012. He was doing well, with satisfactory levels of participation, and was genuinely attempting to address his past offending behaviour and to understand himself better.[47]
2. His Honour went on to say:[48]

My conclusion, based upon the materials received, is that whilst the respondent is making positive steps to address his behaviour, it is too early to determine whether the benefits flowing from participation in a treatment program will translate into lowering of risk. This is an assessment that can only be made following completion of the treatment program.

1. It was conceded on behalf of the respondent that there was no evidentiary basis to support rescinding the continuing detention order at that stage. Hall J found that the respondent remained a serious danger to the community and expressly declined to rescind the detention order.

1. The second review of the respondent's detention was conducted by Jenkins J on 5 June 2013. The respondent had completed the intensive sex offender treatment programme (ISOTP) on 1 June 2012, and had subsequently engaged in individual counselling from 2 August 2012.
2. The ISOTP completion report was generally positive. Jenkins J summarised the findings as follows:[49]

In summary, he met all programme objectives, made some treatment gains, was observed to gain a greater understanding of the factors underlying his offending and demonstrated a greater acceptance of responsibility for his offending behaviour. During the programme the respondent was given the opportunity to develop a self-management plan, which is a plan to develop a balanced lifestyle by setting pro-social goals in a range of areas. Overall, the respondent's self-management plan appeared generally appropriate should he choose to implement it as planned when released into the community.

Persisting risk factors for the respondent were identified as being alone with children, alcohol abuse, emotional management, low self-esteem and relationship problems. It was noted that the respondent had put forward plans and strategies to address these issues and was receptive to receiving professional support in the community if these areas of risk arose in his life. This was a considerable improvement since Commissioner Sleight's decision.

1. While there was evidence before her Honour from a clinical psychologist, Mr Ryan Bell (who had prepared a treatment progress report), that 'those involved in treating [the respondent] noted that he still had limited victim empathy, remained defensive and impressed as being naïve as to the complexities of managing his deviant sexual interests', the respondent had engaged in individual counselling with Mr Summerton to address his ongoing treatment needs.[50]
2. Jenkins J noted the following significant matters in respect of the individual treatment. It had been reported that the respondent had engaged willingly and had generally responded well to treatment. He had shown some insight about risk factors related to his offending. He had spontaneously spoken about the impact that his offending was likely to have had on his victims. He was able to identify several risk scenarios which may precipitate the emergence of deviant thought. He was able to outline a specific and detailed behavioural plan which he would employ to deal with such scenarios. He had spoken openly and honestly about his social anxiety, his concerns related to his release conditions (in the event he were released on a supervision order), his capacity to meet the demands placed on him to meet those conditions and other aspects of life outside of prison.[51]
3. Her Honour further noted that the respondent had also demonstrated a great deal of commitment towards identifying his further treatment needs and ensuring that those needs were met. He had indicated an interest in ongoing psychological intervention and was prepared to attend a community based sex offender maintenance programme and a community based substance abuse programme should he be released. Those developments were regarded as a considerable step forward, as historically the respondent had resisted intervention and had approached therapy with reluctance.[52]
4. The respondent was re-examined by Dr Hall, who had provided a report and given evidence in the div 2 proceedings. Dr Hall noted that, during the interview, the respondent was able to identify matters that he believed had contributed to his offending. Although the respondent remained averse to the term 'paedophile', he accepted that he satisfied the defining criteria on the basis of his behaviour and acknowledged his sexual attraction to children.[53] He had also identified a number of matters as causes of his offending, namely, his own sexual abuse as a child, loneliness, anger at his ex‑wife and alcoholism.[54] The respondent told Dr Hall that he did not want to drink again and that he realised that it was alcohol that had got him into trouble on prior occasions.[55]
5. The respondent told Dr Hall he had been prescribed an antidepressant of the selective serotonin reuptake inhibitor class (SSRI medication) for treatment of his social anxiety disorder. While it appears that the SSRI medication had reduced the respondent's anxiety significantly, had enabled him to talk to adults without as much difficulty and had helped stabilise his mood, he had stopped taking the SSRI medication six weeks prior to his interview with Dr Hall because of his concerns over side effects.[56]
6. In 2011, Dr Hall had used the STATIC‑99 assessment instrument, which has regard to historical factors and age, in assessing the respondent's risk. He used the revised version, STATIC‑99R, in preparing the report for the second review, and arrived at an updated assessment which placed the respondent in the moderate to high risk category of sexual reoffending, which reflected a reduced risk of re‑offending.[57] That was due to the respondent's advancing age and the updated norms incorporated into the STATIC‑99R. Dr Hall said in evidence in the hearing before Jenkins J that 'it was well documented that the risk of sexual re‑offending reduced significantly after the age of 60 years and continued to decrease as the subject aged'.[58]
7. Dr Hall also applied the Risk for Sexual Violence Protocol (RSVP) instrument, which has regard to a number of dynamic risks relevant to the risk of sexual offending. Having referred to Dr Hall's findings in that regard, Jenkins J said:

Dr Hall concluded by saying that the respondent has made considerable progress in the areas of sex offender treatment, his psychiatric condition and approach to placement in the community. Dr Hall observed that it was pleasing that his commitment to change had been sustained and had resulted in a real reduction in his risk in comparison to the level of risk present when he was first declared a dangerous sexual offender.

1. Jenkins J then considered the conditions that had been recommended to manage and monitor the respondent's risk in the community under a supervision order. Those recommendations had been made by the Public Protection Unit of the Department of Corrective Services and by Dr Hall.
2. Addressing the issues to be determined on the review, Jenkins J was satisfied, as to the first issue, that the respondent remained a serious danger to the community. Her Honour said:[59]

Given the respondent's extensive record of serious sexual offending against children, even though it all occurred over 20 years ago, the fact that his steps towards rehabilitation have not been tested by time spent in the community and that he has not remained offence-free in the community for a significant period of time, I am of the same view as Commissioner Sleight and Hall J in this respect.

1. However, as to the second issue, her Honour concluded that, having regard to a number of matters listed by her, she was prepared to rescind the continuing detention order and make a supervision order. The basis for the respondent's release is an integral part of the background against which his current risk must be assessed. Accordingly, it is appropriate to set out the matters upon which her Honour relied. Her Honour said:[60]

The matters that I have relied upon in making this decision are as follows:

(1) The Public Protection Unit of the Department, which is the unit set up by the government to assess dangerous sexual offenders, supports the making of a supervision order.

(2) The Director [ie, the DPP], having regard to the opinion of Dr Hall and the views of the officers of the Department, does not argue against the making of a supervision order.

(3) Dr Hall is of the view that if a supervision order is made with appropriate conditions, the risk of the respondent re-offending can be appropriately dealt with in the community.

(4) Since the respondent was declared a dangerous sexual offender, he has completed the intensive sex offender treatment programme and received a positive report from those who run the programme.

(5) Since completing the intensive sex offender treatment programme, the respondent has had weekly counselling with Mr Summerton and has continued to make treatment gains.

(6) As a result of the programme and the counselling, the respondent has greater insight into the causes of his offending, greater victim empathy, and has a positive plan for his conduct whilst he is in the community. His risk of re-offending has decreased.

(7) In the community, the respondent will be residing with a single man, without children, who does not drink alcohol.

(8) In the community, the respondent will have support from Mr D and his mother, both of whom are long-term friends of the respondent and who are aware of his past offending.

(9) The respondent will also have support from Outreach and his CCO.

(10) The respondent will be required to report to his CCO and the officer in charge of the Police Sex Offender Management Squad and to comply with all obligations imposed on him by them. His supervision by his CCO and the police will ensure close supervision of him whilst he is in the community.

(11) The respondent will not be living with or be in day-to-day contact with children. I note that in respect to his prior offending, apart from perhaps his initial offence in 1970, all the respondent's victims [suppressed]. As Dr Hall has concluded, it is reasonable to assume that the risk of future offending would be with similar victims. Thus, in managing that risk in the community, it is important to ensure that the respondent does not develop or have the opportunity to develop any relationships with adults who have young children; that he does not live with children or in a house that has children visiting it regularly; and that he does not have the opportunity to befriend children. Having regard to all the conditions which are proposed to be included in the supervision order, I am satisfied that none of these situations will occur without it coming to the notice of those who will be supervising the respondent well before there is any opportunity for the respondent to re-offend.

(12) The respondent will be required to continue to have counselling with Mr Summerton and to take SSRI medication in order to decrease his risk of re-offending.

(13) There will be a curfew during the first six months that the respondent is in the community to ensure that he does not go to places at night where he can access alcohol.

(14) The respondent will be subject to electronic monitoring so that he will not be able to go to any place children frequent without the knowledge of the authorities.

(15) The respondent will not be able to consume alcohol and that prohibition will be monitored by appropriate testing. The consumption of alcohol is a significant risk factor.

(16) The respondent will not be able to have unsupervised contact with a child.

(17) The respondent will be required to attend the community-based sex offender maintenance programme in order to reduce his risk of re-offending.

(18) The respondent is now older than 60, and according to Dr Hall, the risk of a person re-offending over this age decreases and continues to decrease as they age.

(19) The supervision order will be for a period of five years, which, according to Dr Hall, is at the outside of the length of a supervision order which is required to ensure that the community is protected.

(20) The supervision order includes all the recommendations of the authors of the reports which I have received for conditions to be included in such a supervision order for the protection of the community.

1. Her Honour released the respondent on a supervision order containing 41 conditions.[61] The order commenced on the date it was made, 6 June 2013, in accordance with the Act as it was at that time. As I noted earlier (see [15] and [27] above), under the current s 17(1)(b) a supervision order must now be ordered to commence on a stated date not earlier than 21 days after the date the order is made.

Developments since respondent was released on a supervision order

1. The respondent's circumstances since he was released on a supervision order on 6 June 2013 until 21 March 2018 were set out in some detail by Derrick J in The State of WA v Kyles. I am indebted to his Honour for that outline, which accords with my review of the materials. I have drawn substantially from it in the next two sections, supplementing it with additional information available at the time of the hearing before me, and elaborating, where appropriate, upon matters I consider to be of particular significance.
2. Although for the most part the respondent has complied with the conditions of the supervision order, he has contravened the order on a number of occasions, as will appear below. In respect of some contraventions he was issued with either a written or verbal warning, or no action was taken.[62] However, on three occasions he was charged in respect of the alleged contraventions.[63] On two occasions he was convicted on his pleas of guilty. On the third occasion the charge was dismissed. Nevertheless, it is relevant for context, as I explain in [92] below. Before dealing with the respondent's performance more generally, it is convenient to start with those three matters.

1. Two of the conditions of the supervision order were that the respondent was not to be in possession of or consume alcohol, and that he was to be subject to electronic monitoring (which is a standard condition), which is achieved by the respondent carrying with him a GPS transmitter.
2. On 14 April 2016 the respondent was charged with an offence of contravening the supervision order by being in possession of and consuming alcohol. Officers from the Sex Offender Management Squad (SOMS) attended his home on the evening of 13 April 2016 and found an empty beer can on the kitchen table. The respondent admitted that he had consumed the full strength beer, which was Emu Export, a short time earlier. The respondent was breathalysed and produced a blood alcohol content reading of 0.02%. The respondent pleaded guilty to the charge on 15 April 2016. He was fined $500 for the offence.
3. Dr Yewers noted that the respondent's explanation for the offence was that he had been thinking about alcohol for several days before the offence and that he had wanted a drink as a reward for how well he had been doing on the supervision order.[64] She noted that the respondent acknowledged, in retrospect, that such thinking was irrational. However, Dr Yewers also noted that the respondent's 'partner' described the events differently, referring to the respondent coming home from fishing and having a 'shandy' with his friend.[65]
4. On 28 September 2016 the respondent was charged with an offence of contravening the supervision order by failing to keep his GPS transmitter on his person. He was alleged to have committed the offence on 27 September 2016. On 8 May 2017 the respondent pleaded not guilty to the charge. On the same date, after trial, he was found not guilty of the charge. The essential basis for the Magistrate's not guilty verdict was that the respondent had established on the balance of probabilities the defence of having a reasonable excuse for not having the GPS transmitter in his possession.[66] Although the respondent was acquitted of the charge, the charge was still pending when he committed the next offence. One would have expected him to be particularly alert to the risk of leaving his GPS transmitter behind.
5. On 8 January 2017 the respondent was charged with a further offence of contravening the supervision order by failing to keep his GPS transmitter on his person. The facts of the offence were that on 8 January 2017 the respondent left his home with a friend for the purpose of going out for a coffee. Before the respondent left his house he contacted the monitoring unit to inform the unit where he was going. While he and his friend were driving to where they were to have their coffee, the respondent realised that he had left his GPS transmitter at his house. The respondent told his friend to turn the car around and return to the house so that he could collect the transmitter. Once back at the house, the respondent collected the transmitter. He and his friend then left the house again to go for coffee. About 20 minutes later, the respondent received a phone call from the monitoring unit inquiring if he had left his transmitter at his home. The respondent said that he had, but that he had then collected the transmitter. The total period of time for which the respondent was without his transmitter was 21 minutes, between 10.36 am and 10.57 am. On 10 January 2017, the respondent pleaded guilty to the charge. He was fined $1,000.

The respondent's performance while subject to the supervision order

1. Apart from the contraventions in respect of which he was charged, the respondent's performance whilst subject to the supervision order of 3 June 2013 can be ascertained from Dr Yewers' report and the performance report prepared by Ms Yun.
2. Dr Yewers reported that, over the course of his order, the respondent occasionally experienced problems interacting effectively and appropriately with his supervising officers from the Department of Corrective Services (DCS) and staff from SOMS.[67] Those issues were addressed by the treating psychologist, Mr Summerton, as they arose, in counselling sessions. The respondent identified that 'his issues with particular staff were intensified by his sensitivity to perceived unfair treatment or criticism, proneness to misinterpret or misunderstand and his consequent hostile reaction'.[68] Mr Summerton was of the view that, although the respondent was open to working through the issues in counselling, 'enduring change beyond this context was neither evidenced nor expected'.[69]
3. There were indications in the earlier stages of the period of supervision that the respondent was 'relatively more predisposed to responding defensively to the restrictions placed on him and/or perceiving them as unfair'.[70] Dr Yewers noted:[71]

This appears to have abated somewhat and, although Mr Kyles reported during the current assessment that he found the extent of the constraints to be overly restricting, he relayed that he needs to 'like it or lump it' and that 'kicking and screaming doesn't do any good'. He further explained that he had benefited from supervision as it 'keeps me in line' and his psychological treatment had facilitated addressing his offending and provided a forum for him to talk through issues.

1. At the time the reports were prepared by Dr Yewers and Ms Yun, in June and October 2017 respectively, the respondent was reporting for supervision on a fortnightly basis. His level of engagement was considered to be satisfactory, as he had demonstrated a willingness to disclose information consistently and was responsive during discussions relating to his current life circumstances and relationships in the community. The respondent had denied experiencing issues managing high risk factors. He claimed that he had continued to employ protective strategies such as avoiding alcohol and having a companion with him on outings.
2. The respondent failed to comply with conditions of the supervision order on seven occasions. I have already referred to the three occasions that were the subject of charges. As I have said, he was found to have a reasonable excuse in respect of one of those occasions. The other four breaches were earlier in time than those that were the subject of charges. The first involved inadvertent telephone contact with a child shortly after his release into the community. The others involved travelling through zones that had been designated by his supervising officer as exclusion zones, and providing a dilute urine sample for urinalysis testing. Those breaches occurred in November 2013, November 2014 and October 2015, so there were significant periods of compliance in between. As for the urinalysis incident, the respondent gave a valid sample the following day, which returned a negative result. It appears to have been accepted that the respondent did not deliberately set out to contravene the order by any of those earlier breaches, and no charges were brought.
3. At the time of the hearing, the respondent was reporting to SOMS on a monthly basis.
4. He was subject to random and frequent urinalysis testing for the duration of the supervision order. As at the time of the hearing, his urinalysis results had consistently been negative for illicit substances.[72] There has been no suggestion of a positive result since the hearing.
5. The respondent was also subject to ongoing random and frequent breath tests conducted by SOMS. Apart from the respondent's non-compliance on 13 April 2016, there have been no further adverse reports. As at the time of the hearing, the respondent had been subject to breath testing on 48 occasions since 13 April 2016.
6. Overall the respondent was considered to have demonstrated satisfactory compliance with his obligations under the supervision order. Although the respondent has contravened the supervision order on several occasions, the majority of those breaches are not considered to be directly related to his risk of sexual reoffending. However, his consumption of alcohol during the term of the supervision order, following a significant period of time during which he had already been subject to the order, raised concerns with respect to his level of insight into his offending and his ability to manage his risk in the community.

Treatment programme and counselling completed while subject to the supervision order

1. While subject to the supervision order the respondent completed the Sex Offender Maintenance Program (SOMP) and engaged in individual psychological counselling, to consolidate the gains he made in the ISOTP. He completed the SOMP on 27 October 2014 and the individual psychological counselling on 23 October 2015.[73]
2. The outcomes of the respondent's participation in the ISOTP, as found by Jenkins J in 2013, are set out in [75] above.
3. In completing the SOMP, which is a community‑based programme, the respondent attended 23 sessions over the course of a year. The completion report was not in evidence, the parties being content to rely on Dr Yewers' summary. The respondent was said to have maintained a 'positive future focus' and impressed as 'cognisant of managing his identified risk factors'.[74] It was also reported that, over the course of the programme, the respondent adjusted progressively to living in the community and refrained from engaging in any behaviours that would place him at risk of being returned to custody both in relation to reoffending and compliance with his order requirements.[75] However, that observation needs to be considered in light of the early contraventions referred to at [98] above, and the respondent's early attitude to the supervision order, described at [95] and [96] above. Nevertheless, Dr Yewers noted that the respondent was observed to be 'heedful about remaining abstinent from alcohol, effectively solving problems and managing his emotions, avoiding contact with children and utilising his [76]rsonal and professional supports'.76 The respondent was also noted to have become increasingly accepting of the restrictions associated with the supervision order. Of course, those outcomes reflect the respondent's circumstances as at October 2015. They are relevant to provide context for the most recent assessments, but it will be necessary to have regard to his behaviour since then and his presentation during the assessments for these proceedings.
4. The same may be said of the respondent's individual counselling. The respondent attended 87 counselling sessions with Mr Summerton over the period 4 January 2012 to 23 October 2015.[77] Counselling was terminated in June 2015, when the respondent was deemed to have no further treatment needs. However, he attended three further sessions in September and October 2015 following a series of contraventions that prompted concern from COMU about a possible increase in his risk of sexual reoffending. However, as I noted earlier, the contraventions were considered to be unrelated to such risk, and counselling was again terminated.[78]
5. Dr Yewers noted that the focus of counselling after the respondent was released from custody was on adjustment to life in the community and implementation of his self‑management plan.[79] I have referred above[80] to the fact that the respondent had issues with his supervising officers and staff from SOMS, and that those issues were addressed in counselling as they arose. I referred to the limitations of gains in that regard, as observed by Mr Summerton. However, Dr Yewers noted that the respondent's overall adjustment was considered by Mr Summerton to be 'largely unproblematic', with the exception of 'early contraventions for having contact with children under his partner's care', which Mr Summerton considered to be a reflection of the respondent not fully appreciating the parameters of the 'no contact' condition of his order.[81] Dr Summerton was of the view that the respondent subsequently became more vigilant about potential contact with children 'across varying contexts' and 'impressed as able to respond appropriately to inadvertent contact with children, as well as implementing measures to avoid areas where contact with children was likely'.[82]
6. According to Dr Yewers, overall, the respondent was considered by the treating psychologist to have made considerable treatment gains. However, it appears that Dr Summerton was of the view that, as the respondent is 'not a psychologically minded individual', it is unlikely he will ever achieve significant insights into his overall functioning. Specifically, the respondent's capacity for 'perspective taking' remained limited, which curtailed his emotional regulation and effective problem solving. Those aspects of the respondent's functioning were resistant to change and were considered by the psychologist to be related to his character. Nevertheless, by the end of the psychological treatment the respondent appeared to have a sound understanding of the issues that broadly underpinned his offending and had implemented adequate risk management strategies.[83]

1. Dr Yewers interviewed the respondent on 29 May 2017. Her analysis of the respondent's treatment outcomes was based on her review of various reports, including from Dr Summerton, interviews with Dr Summerton and Ms Yun (the SCCO who prepared the Performance Report), and her interview with the respondent.
2. Dr Yewers noted that, on completion of the individual counselling with Mr Summerton, the respondent demonstrated a sound understanding of the issues that underpin his offending and had developed, and implemented, adequate risk management strategies. There had been improvements in his 'problem solving and negative emotionality' over the course of the supervision order, including 'increased awareness to seek help, improved emotional regulation, less sensitivity to perceived criticism and decreased reactiveness'.[84] However, Dr Yewers also noted that the respondent's capacity for 'perspective taking' remained limited, and she anticipated that he would be prone to encounter issues in the future in respect of those areas in which he had shown improvement. Dr Yewers said that, during her assessment of the respondent, there was some evidence of a continued limitation in the respondent's ability to solve problems in interpersonal reactions and relationships. The respondent still had a propensity to withdraw during times that are emotionally trying, which appeared to be, at least in part, a product of his expectation of rejection and negative appraisal from others. Dr Yewers was of the opinion that those characteristics are unlikely to shift.
3. Dr Yewers considered that strategies described by the respondent during the assessment for managing his risk were generally satisfactory. They involved avoiding contact with children (including inadvertent contact) and abstaining from alcohol. The respondent planned to rely on support from his partner and friends, spend time with his friends and engage in age-appropriate constructive activities, in order to avoid isolation and depression. Dr Yewers was of the opinion that the respondent's ability to continue to put those strategies into effect will depend on his ongoing vigilance, particularly in relation to his propensity to isolate himself during times of angst and to assume negative appraisal.[85]
4. Although Dr Yewers was of the view that the respondent had complied with the requirements of his order for the most part, she considered that the incident involving his consumption of alcohol 'casts some doubt over his fortitude to abstain going forward'.[86] Dr Yewers noted that, while alcohol was a contributing factor to the respondent's previous offending, its role appears to have been as a disinhibitor. Accordingly, when the respondent was faced with unresolved emotional difficulties which left him lonely and isolated, alcohol increased the likelihood that he would act on his pre‑existing sexual interest in children.[87]
5. The respondent told Dr Yewers that, as at the time of the interview, he did not have a sexual interest in children or a desire to befriend them. He said he had consistently avoided contact with children since his release into the community. Dr Yewers noted that 'high monitoring associated with the supervision order might be an additional deterrent in this regard'.[88]
6. As I noted earlier, the respondent has been in a relationship with Ms H, who he met through his second partner. He has referred to Ms H as his partner. Dr Yewers noted that the relationship, which, at the time of her interview with the respondent, had 'persisted' for 30 years, was ill‑defined, 'despite [the respondent's] intention for [it] to develop into an intimate relationship'. Dr Yewers noted that such development had not eventuated, and the relationship was better defined as a friendship.[89] Ms H and her son were aware of the respondent's offending.
7. The respondent appeared to have a stable friendship with his neighbours, but they were not fully aware of the nature of his offending, and he was of the view they were unlikely to look favourably upon him should his sexual offending become known.[90] At the time of the assessment, the trial of the outstanding charges against the respondent had not yet occurred. He indicated to Dr Yewers that if his neighbours found out about the charges, he would terminate his contact with them, which Dr Yewers considered to reflect a response by him to expected rejection and negative appraisal by his neighbours.

Dr Yewers' view about the removal of certain conditions

1. Dr Yewers was of the opinion that there was unlikely to be any significant change in the respondent's lifestyle following the removal of GPS monitoring. She said that his movements appear to be predictable and largely routine, and it was doubtful they would change significantly. She was of the opinion that cessation of electronic monitoring would allow the respondent to live in a manner more akin to his circumstances after the cessation of the supervision order, with the benefit of COMU and SOMS being able to oversee his behaviour and intervene if necessary.[91]
2. Although the removal of exclusion zones may increase the possibility that the respondent would come into contact with children, Dr Yewers was of the opinion that the respondent impressed, at the time of assessment, to be motivated to avoid contact with children, and appeared to have done so until that time. She considered that removal of the exclusion zone that prevented him from attending Ms H's house would permit 'greater, unfettered contact with her and may advance some resolution of the nature of their relationship'.[92] Dr Yewers considered that resolution of that issue while the supervision order is still in operation would 'allow for the outcome to be monitored, any risk scenarios to be managed and support provided if required'.[93]

1. Dr Yewers conducted a risk assessment utilising the STATIC‑99R instrument in conjunction with another instrument called STABLE‑2007, which has regard to dynamic as well as historical factors and is designed to assist in the prediction of sexual and violent recidivism for sexual offenders. The context of Dr Yewers' assessment was to inform the decision whether the present application should be made, and to assist the court to determine at a preliminary hearing whether the matter should proceed to a div 2 hearing.
2. After the preliminary hearing, reports were requested from Dr Wynn Owen and Dr Wojnarowska. The risk assessments for these proceedings are contained in the reports of those psychiatrists, and were elaborated upon in their evidence. However, I must still have regard to Dr Yewers' assessment under s 7(3)(b) of the Act as a previous psychological assessment in respect of the respondent.
3. In the circumstances, in particular given that the assessment was made in June 2017, it is not necessary to set out the details of Dr Yewers' assessment of the respondent's risk of sexual reoffending. It is sufficient to say that Dr Yewers' findings in respect of relevant dynamic factors were broadly consistent with the findings of Dr Wynn Owen and Dr Wojnarowska. Combining the respondent's scores from the STATIC‑99R and STABLE‑2007 assessments, Dr Yewers concluded that the respondent was in the moderate-high risk category of sexually reoffending. Men in the normative sample with the same risk profile as the respondent reoffended sexually at a rate of 12% over five years.[94]
4. Dr Yewers' opinion as to the most likely scenario for sexual reoffending by the respondent was consistent with the views subsequently expressed by Dr Wynn Owen and Dr Wojnarowska. Based on the nature of the respondent's previous sexual offending, the scenario would involve the respondent forming a relationship with a pre-adolescent child or with someone who has access to young children (such as a grandparent). That might occur in the context of an intimate relationship or friendship, but it could also result from the respondent involving himself in child‑centred activities. Trust would be gained over time, providing the respondent with potential opportunities to be alone with a child. Relationship difficulties and/or social rejection that the respondent feels he cannot resolve may result in him withdrawing and seeking solace in contact with children. Alcohol use would also increase the probability of him acting out.[95]

The respondent's personal circumstances at the time of the hearing

1. The respondent's personal circumstances at the time of the hearing are described in the reports and evidence of Dr Wynn Owen, Dr Wojnarowska and Ms Comery, who prepared the Community Supervision Assessment report. Ms Comery had met with the respondent on four occasions. The respondent indicated to Ms Comery some stress and concerns over the current proceedings, but not to a level that would be unexpected.[96] The respondent had been re-assured that Mr Summerton would be available to re‑engage with him, if the stress were to become too much. The respondent had not asked to see Mr Summerton as at the time of the hearing.[97]

1. The respondent has maintained stable private accommodation during the period of the supervision order through the Western Australian Housing Authority. Ms Comery confirmed there were no issues or concerns in relation to the respondent continuing to live there.[98] However, the respondent continued to be concerned that neighbours in the residential complex might find out about the nature of his past offending, which he believed would cause concern for them.[99]
2. The respondent receives the age pension.

1. The respondent has few supports within the community. He has no contact with any of his children or with his older brother. He has a small cohort of friends, consisting of Ms H, her adult son and several neighbours. At the time of the hearing, he continued to identify Ms H as his primary support. He had come to understand that his wish for the relationship to become romantic was 'not congruent with [Ms H's] feelings as she wants to remain friends', and he told Ms Comery that he accepted that situation.[100] I note that Ms H had made her feelings known for a long time. When she was spoken to independently on 29 June 2017 by Ms Yun (for the purposes of the Performance Report), she said that she did not have any intention of entering into a relationship with the respondent, as she did not wish to be in a relationship.[101] At that time, the respondent was still 'open to exploring the possibility of the friendship developing into a romantic relationship'.[102]
2. Ms Comery spoke with Ms H independently on 22 March 2019. Ms H indicated that she intended to continue to support the respondent in the community long-term, and that she believed the respondent would not have any difficulty avoiding sexual reoffending in a similar manner due to his cessation of alcohol use.
3. When she was spoken to in 2017, Ms H had said that she would not permit the respondent to be unsupervised with children while he is subject to the supervision order. However, she had said that she would have no concerns leaving the respondent unsupervised with a child once the supervision order expires. Ms H has regular contact with a five‑year‑old girl and an 11‑year‑old boy, both of whom are children of her foster daughter. During her interview in June 2019, she said that she would not permit the respondent to be unsupervised with children, whether or not he is subject to a supervision order in the future.[103]

The respondent is prohibited from going to Ms H's house

1. Ms Comery noted that the respondent had been prohibited from attending Ms H's residence because of the 'identified risks and likelihood of contact with children'.[104] This was achieved by the issuing of a lawful written direction and the setting up of an exclusion zone using GPS monitoring.[105] The decision to impose that prohibition was made by the Risk Management Team in consultation with the Department of Communities, Child Protection and Family Support (DCP), which made its own independent assessment and continued to monitor the circumstances.[106] COMU checks regularly with DCP as to whether there has been any change in its stance, and the question of whether the exclusion zone should be relaxed would have to be the subject of ongoing discussion with DCP.[107]
2. I have already noted the respondent's desire to be able to go to Ms H's home. Ms H also indicated to Ms Comery her desire for the respondent to be able to attend her address, and for her to be able to cook him a meal, although she acknowledged there was nothing to stop her from going to the respondent's house regularly, or taking him a meal.[108]

1. Ms Comery reported that the respondent was attending for supervision on a fortnightly basis. Consistently with the observations of others, to which I have already referred, Ms Comery noted that, over the term of his supervision order, the respondent had periodically expressed a disgruntled attitude in relation to matters concerning his social contacts or when discussing the requirements of electronic monitoring. However, Ms Comery noted that in recent times the respondent's attitude had somewhat improved - he had been more prepared to disclose information and was less oppositional during discussions.[109]

1. The conditions of the supervision order and the lawful directions and exclusion zones implemented pursuant to the order necessarily restrict the hobbies and other activities in which the respondent can engage, as they restrict his ability to be in places where children may gather.
2. The respondent has expressed a desire to go fishing with his friends. When asked about the possibility of the respondent being able to do so, Ms Comery said that, while she was not aware of the respondent's desire in that regard, if he were to propose to go fishing with his peers, the proposal would be considered having regard to relevant circumstances, including the location, who he would go with, the time of day and whether or not it was during school holidays.[110]
3. Ms Comery was asked about a past request by the respondent to go crabbing in Mandurah during Crab Fest. She said that, given the likelihood of contact with a child during that particular day, the respondent was told he could not go. She said he was told that he could go crabbing at any time other than when the festival was on.[111]

1. Ms Comery confirmed that the respondent is not currently subject to a curfew condition.[112] She said that, if he were subject to a further order, that would remain the case. [113] Nevertheless, the proposed conditions for a further supervision order included a curfew condition. Ms Comery said it was included as a 'fall‑back' condition, in the event that the respondent's situation were to destabilise in some way.[114]

1. Ms Comery noted that the respondent reports to SOMS on a monthly basis, and when he is no longer subject to a supervision order, he will continue to be managed under the Australian National Child Offender Register (ANCOR) until 14 June 2028.[115] He will have reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) (CP(OR) Act), which are confined to reporting personal details periodically to the police.

1. Ms Comery reported that the respondent denied experiencing difficulties in his decision‑making and ability to avoid high risk situations. He said that he continues to employ protective strategies developed during his participation in programmes whilst in custody. For example, he uses public transport only outside peak periods, he avoids being in possession of or using alcohol, he avoids locations where alcohol consumption takes place, and he avoids 'child focused areas' in the community.[116]

1. Ms Comery said that the respondent has expressed an intention to travel around Australia by caravan with Ms H and a neighbour upon expiry of the supervision order. He has indicated that he intends to manage his risk in the community by avoiding alcohol use and ensuring he is always accompanied by another adult.[117]

Reports and evidence of court appointed psychiatrists

1. The two psychiatrists who examined the respondent for the purpose of preparing reports under s 37 of the Act, namely Dr Wynn Owen and Dr Wojnarowska, are consultant forensic psychiatrists who are both highly qualified in the area of risk‑assessment for the purposes of the Act and are well known to the court. Their qualifications and experience are not in issue. Both had access to and considered a large volume of material from the previous proceedings in respect of the respondent under the Act and the materials in the Book of Materials tendered in these proceedings.
2. Dr Wynn Owen examined the respondent on 19 March 2019 for three hours. Dr Wojnarowska examined him on 23 March 2019 for two and a half hours.

1. Consistent with previous diagnoses of the respondent, both psychiatrists diagnosed the respondent as having the following disorders:

(1) paedophilia, non‑exclusive type, attracted to male and female children;

(3) substance (alcohol) abuse disorder/alcohol dependence.[118]

1. The paedophilia is of the 'non‑exclusive type' because the respondent is attracted to adults as well as male and female children.[119]
2. Dr Wynn Owen made the diagnosis of paedophilia on the basis of the long duration of the respondent's past paedophilic activity.[120] Dr Wojnarowska similarly stated that the respondent fulfilled the criteria of paedophilia, non‑exclusive type on the basis of his 'long history of sexual offending against prepubescent male and female children ranging between the ages of 5 and 11 years predominantly', having started sexually offending when he was 18 years old and having offended until he was incarcerated some 25 years ago.[121]
3. Dr Wynn Owen said that he tends to characterise paedophilia as a part of personality, rather than a disorder. It is 'not a treatable disease, any more than other sexual preference is [a] treatable disease', so it does not 'go away', although 'one's ability to manage it can vary and in some quite significantly'.[122]
4. Dr Wynn Owen noted that the presence of sexual deviance increases the risk that the respondent will commit a future sexual offence.[123] Dr Wojnarowska described it as a significant risk factor. [124]
5. Dr Wojnarowska noted that the respondent acknowledges his sexual deviance, which is relevant to his manageability and treatment.[125] On the other hand, Dr Wynn Owen said that the respondent still finds it difficult to accept the diagnosis of paedophilia. Overall, however, as will appear below, that qualification in respect of the respondent's acknowledgement of his sexual deviance does not appear to have affected in any significant way Dr Wynn Owen's assessment of the respondent's risk.
6. Apart from the psychiatric conditions referred to at [140] above, Dr Wynn Owen also diagnosed the respondent with social anxiety disorder, which was being treated by medication at the time of the examination, with go[126]response.126
7. As for the substance abuse disorder, Dr Wojnarowska noted that, while the respondent's past pattern of drinking was suggestive of alcohol dependence, the condition was in full remission.[127]

1. Dr Wynn Owen said there was nothing particularly remarkable arising from the mental state examination of the respondent. He did not find any symptoms of major mental illness or a major cognitive deficit.[128]
2. Similarly, Dr Wojnarowska said the mental state examination yielded no abnormal findings in terms of mental illness and were no different from her examination in 2011.[129] The respondent presented as very motivated to do well. He engaged well in the interview and was appropriate, polite and sincere in his answers.[130]

1. Both psychiatrists undertook a risk assessment of the respondent by utilising STATIC‑99R, the RSVP and the Hare Psychopathy Checklist‑Revised (PCL‑R) and exercising clinical judgment on the basis of their interviews with the respondent.

1. It is convenient to outline first the overall assessment of risk made by each of the psychiatrists, before turning to the results of the formal assessments and the manner in which they inform the question of risk and what may be necessary to manage that risk.

1. Dr Wynn Owen was of the opinion that, if not subject to a further supervision order, the respondent poses an average risk of committing a future sexual offence. Taking into account the scores obtained on the formal assessments, he would quantify the risk as being about a 10% chance of sexual reoffending.[131] That estimate is in the 'context of the likelihood of recidivism in those who have previously committed a sex offence'.[132] The baseline risk, that is, the risk that a man who has not committed a sexual offence before will commit a serious sexual offence, is estimated as being somewhere between 0.9% and 4%, with most studies estimating the risk as being around 1%.[133]
2. Dr Wynn Owen noted that the estimate of the respondent's risk of sexual reoffending reflected a change from the assessment in 2013, when Dr Hall concluded that the risk was 'moderate to high'.[134] Dr Wynn Owen also noted that, as the respondent gets older, his risk will inevitably decline, as a result of physiological change (which affects libido), physical change (which leads to reduced mobility), and a range of other factors, including time spent in the community without committing a further sexual offence.[135] He said that ageing had slightly less effect in paedophile offenders, when compared to other sexual offenders.[136]

1. Dr Wojnarowska was of the opinion that there has been a significant change in the respondent's presentation, compared to his examination in 2011. In her opinion, his risk of sexual reoffending, if not subject to a supervision order, has decreased from very high to high.[137] The assessment was based on the risk identified by the application of the STATIC‑99R, adjusted to take into account the presence of paedophilia and the respondent's psychopathic personality structure.[138]
2. Dr Wojnarowska was also of the opinion that the change in risk (from 'very high' to 'high') can be attributed to the respondent's self-awareness, which is associated with his acceptance that he committed offences.[139] She suspects the awareness is largely attributable to the individual psychological counselling, which has enabled the respondent to achieve good insight into his functioning. She said he has developed social skills, and has accepted the fact that he is a paedophile and a sex offender.[140]

1. STATIC‑99R requires consideration of a number of static (i.e. historical, and therefore unchanging) factors, and the person being assessed is scored according to whether the factor is present or not. Apart from the static factors, the instrument takes into account one dynamic factor, being the person's age.
2. On Dr Wynn Owen's assessment, the respondent scored 4 on the STATIC‑99R, which puts him in level IVa, or in the 'above average' risk range. The fact that the respondent was 67 years old at the time of assessment reduced his score by 3 from previous assessments.
3. The score of 4 means that, based on past cohorts referred to in the research, there is an 11% likelihood of the respondent committing a sexual offence within 5 years.[141] In other words, out of 100 sexual offenders with the same score, 11 would be charged or convicted of a new sexual offence within a further 5 years in the community.
4. Dr Wynn Owen noted that sexual offenders, particularly those at high risk of reoffending, tend to offend relatively early after they have been released and also tend to be caught quite early. Research undertaken in 2017 by the authors of STATIC‑99 showed that the risk of reoffending declines with time spent in the community without re‑offending. It has been suggested that the risk may reduce by approximately half within a 5 year period.[142] However, the research to which Dr Wynn Owen referred did not take into account supervision in the community. Supervision and monitoring play an important role in risk mitigation, and the importance of supervision to risk management varies between individuals. The estimation of risk, therefore, needs to be approached with some caution, as it is not known whether the removal of the monitoring and restrictions of a supervision order might affect the level of future risk.
5. Nevertheless, Dr Wynn Owen noted that, given the respondent has spent a total of more than 5 years in the community and has not committed a sexual offence, his likelihood of reoffending, based on static risk factors and having regard to the research, is now Level III, or 'average' risk (3.9 ‑ 7.9%). Dr Wynn Owen considered that it would reduce the respondent's risk of sexual reoffending to 6%.[143]
6. Therefore, based on the STATIC‑99R result, Dr Wynn Owen placed the respondent's risk of reoffending somewhere between 6% and 11%.[144]

1. Like Dr Wynn Owen, Dr Wojnarowska arrived at a score of 4 on the STATIC‑99R assessment.
2. Dr Wojnarowska said the reason she placed the respondent's risk level at 'high' rather than only 'above average', as suggested by the STATIC‑99R score, is that, in her opinion, the STATIC‑99R does not reflect the fact that paedophiles maintain their sexual interest well beyond the age of 60. In her opinion, therefore, there should not be a reduction of a paedophile offender's risk attributable to age, unlike the case with other offenders.[145]
3. Further, Dr Wojnarowska noted the limitation I referred to at [159] above. That is, while the STATIC‑99R suggests that the risk of recidivism halves after every 5 years in the community during which a person does not re‑offend, there is no information as to whether the cohort of persons in respect of whom that conclusion was drawn consisted of persons on a supervision order, or persons who were unsupervised (or, it might be added, a combination). Therefore she did not draw any conclusion as to whether the respondent's risk had halved while on the superv[146]on order.146

1. The RSVP requires consideration of both historical and dynamic (changing) risk factors. As Dr Wynn Owen explained, in broad terms the historical factors are to do with things such as victim selection, frequency and diversity of offending.[147] They are mainly dealt with under 3.1 below. The dynamic factors, which can affect the level of risk if there is a change in one or more of the domains to which they relate, are concerned with psychological adjustment, the presence of a mental disorder, social adjustment, and manageability.
2. Dr Wynn Owen said that there had been some changes in a number of areas since the respondent was first assessed under the Act, and that is significant.[148] He was of the view that the changes appeared to reflect the benefits of the respondent's participation in the intensive sexual offender treatment programme and successful one-to-one therapy with Mr Summerton.[149] I noted earlier that Dr Wojnarowska also considered the individual counselling to have been significant in the changes she observed in the respondent.[150]

1. Dr Wynn Owen identified the static risk factors that are present in the respondent's case as chronicity of sexual violence, diversity of sexual violence, physical coercion in sexual violence and psychological coercion.[151] They are factors that are associated with an increase in risk of future sexual offending. In context, and as elaborated by Dr Wynn Owen and Dr Wojnarowska, the reference to 'sexual violence' in the RSVP includes any sexual offending, irrespective of whether 'violence' was used, in the sense in which that noun is ordinarily understood. 'Chronicity' appears to encapsulate the persistence of offending as well as its severity. Based on research, chronicity is considered to be useful in drawing inferences about the likelihood, frequency and imminence of future reoffending.[152]
2. Dr Wojnarowska identified similar factors, noting that chronicity of sexual violence and the relatively early onset of the respondent's sexual offending (at the age of 18 years) were the areas of relevance. The respondent's offending had been persistent. It was also associated with psychological coercion.[153]

1. Dr Wynn Owen observed that extreme minimisation and denial of his offending have been relevant factors at many stages during the respondent's history of offending.[154] The respondent showed improvement in those areas, in that he had taken greater responsibility for his behaviour. While there may have been a degree of minimisation, in the form of glossing over or conflating some of his offending, the respondent acknowledged that the offending had occurred. Dr Wynn Owen considered that to be a shift in the respondent's profile.[155]

1. Dr Wojnarowska expressed similar views. She said she observed significant improvement in the respondent's psychological domain since 2011, in particular in the area of cognitive distortions, such as his previous extreme minimisation, and in his acceptance of personal responsibility.[156] She said there was no evidence of extreme minimisation when she assessed the respondent. He accepted personal responsibility for his offending.[157]

1. Dr Wynn Owen said that self‑awareness has been an issue for the respondent in the past. He noted that a person's awareness of their paedophilia is extremely important if they are coming into contact with children.[158] Dr Wynn Owen saw a shift in the respondent in that regard. He referred to the number of strategies the respondent has to avoid contact with children. The respondent also acknowledged to Dr Wynn Owen that early on he had not understood why it was necessary for him to avoid children, but he now seemed to understand that exposure to children put him at increased risk of offending.[159]
2. Dr Wynn Owen said that, while the respondent is not entirely clear about his paedophilia or particular drives, and there is still some lack of self‑awareness, its contribution to risk is significantly reduced.[160]

1. Dr Wynn Owen identified the respondent's consumption of alcohol as a significant factor in the respondent's past offending and his risk profile.[161] He noted that the respondent was a 'fairly chronic drinker' over a long period of time, although the amount he drank varied.[162] The respondent told Dr Wynn Owen that alcohol would increase his sex drive. Dr Wynn Owen also noted that alcohol is a disinhibitor.[163] He said it is 'a dynamic risk associated with an increased likelihood of future sexual offending if alcohol is reinstated'.[164]
2. However, Dr Wynn Owen was of the opinion that therapeutic intervention and the respondent's subsequent change of behaviour (in that he had not used alcohol for more than 5 years) has moderated that risk.[165] Of course, between 1992 and 2013 (the period during which the respondent was imprisoned), the respondent did not use alcohol at all, due to enforced abstinence.[166] As for the period during which the respondent has been subject to the supervision order, it is not possible to say what contribution the conditions of the supervision order have made to the reduction of the risk of alcohol use by the respondent. However, during Dr Wynn Owen's assessment, there was evidence of internal protective mechanisms affecting the respondent's behaviour.
3. Dr Wynn Owen said the respondent has made the connection between alcohol abuse and his offending. The respondent also acknowledged that he had previously blamed his alcohol use for the offending, but he now blamed himself for the offending, seeing alcohol as part of the pattern that had led to the offending. Dr Wynn Owen thought that was an important insight.[167]
4. Earlier in these reasons, I referred to the respondent's contravention involving the consumption of alcohol. The respondent admitted using alcohol on one occasion during the supervision order. He told Dr Wynn Owen that he took 'a couple of swigs' from a beer, but did not like the taste of it. He told Dr Wynn Owen that he felt unlucky that SOMS attended on that day and required him to undergo a breath test.[168]
5. Although that incident does not appear to have been regarded by Dr Wynn Owen as an indication of increased risk, he was concerned that the respondent had expressed a desire to have a drink while out with Ms H, if he is no longer subject to a supervision order. Dr Wynn Owen was of the view that the risk of the respondent returning to alcohol use was the most significant risk present at the time of assessment.[169]

1. Dr Wojnarowska considered that the respondent had demonstrated 'ambivalence' with regards to alcohol.[170] She said that, on one hand, he is well aware of the fact that alcohol was a very important causal precipitating factor in his offending. On the other hand, he indicated he would like to 'have a normal life', which for him includes having an occasional beer with friends, at a barbeque.[171] However, he told Dr Wojnarowska that when he tried a beer (a reference to the contravention incident), he did not like it, hence the ambivalence.[172]
2. Dr Wojnarowska said that the respondent did not indicate that he wanted to drink heavily or daily, but her concern would be that, if he were to start drinking, he may relapse into heavy drinking.[173]
3. When asked in cross‑examination about the dangers associated with the respondent drinking alcohol socially, Dr Wojnarowska said that, despite the fact that he is very motivated not to drink, he is much more likely to relapse into alcohol abuse and dependence because of his history of alcohol abuse, even if he only intends to drink on a social level.[174]
4. While Dr Wojnarowska acknowledged that the respondent had not yet relapsed, she made the point to which I have already referred, that it is not known to what extent the restrictions imposed by the supervision order contributed to his successful abstinence.[175]

1. There is evidence that child abuse is a risk factor for sexual recidivism and it has also been implicated in the development of sexual deviance and problems with empathy.[176] Dr Wynn Owen explained that people who have been abused as children are at increased risk of offending in the future, due to the risk of distorted cognitions and changes to the way they think and interact with others. He said that had occurred in the respondent's case in the past.[177] Dr Wynn Owen noted that the factor of problems resulting from child abuse has definitely been present in the respondent's risk profile in the past, but he was of the opinion that it is now moderated as a possible risk. That appears to be due to the respondent having gained a level of insight.
2. Dr Wynn Owen said that the respondent raised the subject in the ISOTP, discussed it with Mr Summerton, and was prepared to discuss it with Dr Wynn Owen. He said the respondent was 'reasonably comfortable' discussing the abuse, and understood that it may have contributed to his offending.[178]

Problems related to self-esteem, coping with stress and interpersonal skills

1. Dr Wojnarowska said that in the past the respondent had problems with self‑esteem, coping with stress and interpersonal skills, all of which are risk factors under the psychological domain in the RSVP. She said those factors were not present during her assessment of the respondent for these proceedings.[179] She said the respondent's significant improvement in those areas was evidenced by his ability to function in society quite successfully, including being able to deal well with stress.[180] He presented as more confident, less defensive, and in a very polite manner.[181] His interpersonal skills have improved and he has managed to develop friendships.[182]

1. The most significant factors that are relevant in the respondent's case in the domain of mental disorder, namely his sexual deviance and his history of alcohol dependence, are discussed above.[183] As I have already noted, sexual deviance is associated strongly with the risk of sexual offending. The respondent's acknowledgement that sexual deviance is part of his make‑up mitigates its effect to some extent, in that it makes his risk more manageable and makes him more amenable to treatment.[184]
2. In relation to the respondent's history of dependence on alcohol, both Dr Wynn Owen and Dr Wojnarowska were of the view that, although the respondent has been abstinent for a considerable period of time, the potential for relapse is still an important and relevant factor in his future management.

1. The other potentially relevant factor in the domain of mental disorder is the presence of psychopathy or psychopathic traits. As I outlined earlier, there was a divergence of opinion in 2011 between Dr Wojnarowska and Dr Hall as to whether the respondent met the threshold for the presence of psychopathy when scored under the PCL‑R.[185] In these proceedings there was again a divergence of opinion between Dr Wynn Owen and Dr Wojnarowska.
2. Both psychiatrists gave evidence that the presence of psychopathy and a deviant sexual interest, in combination, is associated with a higher risk of future sexual offending by someone who has already committed sexual offences.[186] Dr Wojnarowska said that the two psychological factors are the main risk factors for sexual re‑offending.
3. Dr Wynn Owen said that the PCL‑R 'cut off' score for identifying the presence of psychopathy is 25. Dr Wojnarowska said that, according to European standards, the 'cut off' is 26. The difference is not important, as Dr Wynn Owen said the respondent did not reach the score of 25 (or even within two points of that) when he administered the PCL‑R,[187] whereas Dr Wojnarowska arrived at a score of 26, which met the threshold for psychopathy on the standard she applied.[188]
4. The PCL‑R requires that points be attributed according to whether or not particular individual features relevant to the determining whether a person is psychopathic are present. As both Dr Wynn Owen and Dr Wojnarowska explained, it is not unusual (or unexpected) for experts applying the test to the same individual to arrive at scores that differ by a few points. That is because, as clinicians, they are asked to exercise judgement and score the individual in respect of 20 relevant domains on the basis of information from the person being tested and information in any collateral materials, assessing in respect of each domain whether it is 'not present, potentially present, or definitely present'.[189] As Dr Wojnarowska explained, a clinician is asked to say whether a feature is 'definitely present' or 'perhaps present', based on their impression. The difference between those answers will result in a difference of one point.[190] Similarly, Dr Wynn Owen said that the difference of a few points overall (even straddling the 'cut off' score) does not necessarily reflect a disagreement 'other than perhaps a variance of ... one or two on a number of the items'.[191]

1. Although Dr Wynn Owen did not find that the respondent met the threshold score for psychopathy, he did find that the respondent's score was quite high on a number of the domains within the PCL‑R. Dr Wynn Owen explained that this was consistent with his diagnosis of an antisocial personality disorder, which has a number of the features in the PCL‑R.[192] Dr Wynn Owen said that features such as being cunning and manipulative, callous and non‑empathic were all present as part of the respondent's 'sort of lifelong pattern of behaviour', particularly between 1970 and 1992.[193] However, Dr Wynn Owen explained that he also had to take into account under the PCL‑R the respondent's behaviour from 1992 until the time of assessment, including his 'function and behaviour' in prison.[194]
2. Dr Wynn Owen also noted that, while there is an expectation that personality is fairly stable, some elements, particularly some of the 'extreme' elements, of a person's personality start to vary after the age of 55 or 60 years. He gave two examples. First, a person is less likely to 'act out in extreme violence or respond in an extremely violent manner if that has been their pattern'. Secondly, impulsivity can reduce.[195] The first example would appear to be of questionable relevance to the respondent. His offending that involved sexual penetration of children may properly be regarded as involving violent acts, because of the nature of the penetration, but Dr Wynn Owen's example appears to be concerned with violence of a more extreme kind. The example of reduced impulsivity may be of relevance to the respondent, although much of his offending involved grooming of his young victims. Ultimately, I was not left with the impression that aspects of the respondent's personality relevant to his offending have changed as a result of age. To the extent that his risk of sexual reoffending has reduced, it is as a result of other factors discussed in these reasons.

1. The score of 26 on the PCL‑R, reached on Dr Wojnarowska's assessment, is the same as the score she gave the respondent in 2011. Dr Wojnarowska explained that psychopathic traits, by definition, are constant over a lifetime. She noted one possible area in which personality may change:[196]

There is some suggestion that, perhaps, in the area of antisociality, of factor 2, that with age, people, sort of, become more mellow. They become less antisocial in their attitudes. But, otherwise, no.

1. Dr Wojnarowska said that the respondent's age did not affect his score.[197]
2. Dr Wojnarowska noted in her report that the equal distribution of the respondent's scores identified deficiencies in all areas and was significant in predicting his risk of reoffending.[198] It is apparent from Dr Wojnarowska's observations that the psychopathic traits she identified were largely manifest during the time when he was committing sexual offences. Nevertheless, as they are part of his personality, they continue to be relevant in the assessment of his risk of reoffending.
3. Dr Wojnarowska observed that the respondent's psychopathic traits, including his well‑developed ability to manipulate and deceive, were useful in concealing his offending behaviour for prolonged periods of time. She went on to say:[199]

He is also deficient in affective functioning: he has a history of disregarding societal norms and his victim's distress. Some of his victim's statements clearly portrayed the respondent as a callous/unemotional man.

1. Within the domain of social adjustment, problems with intimate and non‑intimate relationships, loneliness and social isolation are dynamic risk factors associated with an increased likelihood of future sexual violence.[200] Dr Wojnarowska explained the relevant factors within this domain as follows:[201]

This domain comprises four factors that reflect problems relating to other people and fulfilling social roles and obligations. The first factor pertains to difficulties in establishing and maintaining romantic and sexual relationships with age appropriate partners.

...

Problems with non-intimate relationships relates to difficulties maintaining prosocial relationships with family and friends.

1. Dr Wynn Owen noted that the respondent has had issues with both intimate and non‑intimate relationships over a long period of time, including prior to his imprisonment in 1992. He referred, as an example, to the fact that while the respondent was in his marriage relationship, 'there was infidelity, there was sexual offending ... there was untruth, there was deceit and there were a whole range of issues'.[202] Dr Wynn Owen explained that such issues will relate in part to not having certain needs met (whether intimate or non‑intimate), not being able to ask for those needs to be met, and not being able to discuss them.[203]
2. Dr Wynn Owen was of the opinion that those factors may have changed over time, in that the respondent has sustained his relationship with Ms H for a long period of time, since just prior to his incarceration in 1992, and he has also developed relationships with her son and with other groups of people who live in his accommodation block.[204]
3. Dr Wynn Owen was of the opinion that the respondent had thereby demonstrated an ability to form pro‑social relationships of a non-intimate nature.[205] He noted the respondent had not had any opportunity to have intimate relationships.[206]
4. Consistently with what I described earlier, the respondent told Dr Wynn Owen that he had hoped that his relationship with Ms H may become intimate, but Ms H did not share that desire. Despite that difference, both were happy to maintain a close friendship.[207]
5. In his report, Dr Wynn Owen noted that, in the past, the respondent's problems with non‑intimate relationships had been a risk factor in his sexual offending, in that he used the establishment of friendships and relationships of trust to gain access to his victims.[208] He was of the opinion that the relationships the respondent has developed and sustained while he has been subject to a supervision order appear to be 'protective and supportive indicating an improvement in this area, associated with a reduction in offending risk'.[209]

1. Dr Wojnarowska was of the opinion that, although the respondent was in a long‑term relationship in the past, it had been volatile and he did not appear to be able to develop interpersonal stability.[210] That appears to have changed in that he has been able to maintain a stable relationship with Ms H and has 'demonstrated persistence in achieving his goal' of progressing his friendship with Ms H to 'a different level'.[211]
2. Dr Wojnarowska said that, although the respondent has a history of major problems in the area of social adjustment, he has demonstrated that he has the ability to develop new pro‑social friendships that he would like to pursue and maintain.[212] She thought this was likely the result of 'years of psychological counselling and abstinence from alcohol'.[213]
3. The problem identified by Dr Wojnarowska is that the respondent's new friends are not aware of his offending, and the respondent has indicated that, should they learn about the offending, he would terminate the friendships, rather than try to explain or seek understanding from his friends.[214] Dr Wojnarowska was of the view that it would be a major stressor in the respondent's life if those friendships collapsed. His daily routine revolves around those friendships.[215]

1. Both Dr Wynn Owen and Dr Wojnarowska noted that, in the past, the respondent has had problems in the domain of manageability, being:

1. Dr Wynn Owen said that the problems had been reflected in the respondent's offending and when the offending occurred. In that regard, the problems related in particular to having the respondent access treatment programmes and his poor responses to early treatment.[216]
2. However, Dr Wynn Owen noted that the respondent had subsequently completed the ISOTP, with a successful outcome (according to the report), and he also completed individual counselling with Mr Summerton, again with apparent success and with a 'mutually agreed close‑off'.[217] In those circumstances, Dr Wynn Owen was of the opinion that treatment was not a specific issue for the respondent at the time of assessment. Further, consideration of the respondent's performance while subject to the supervision order suggested that he had complied well with the conditions and his response to supervision was good. That was so, notwithstanding the two convictions for contravening the supervision order, in respect of drinking some alcohol and not having his personally held device on him.[218]
3. Dr Wynn Owen concluded that the respondent's problems with manageability have reduced in all three areas.[219] That reduction occurred in the context of what Dr Wynn Owen considers to be 'a fairly tight supervision framework', with conditions that are 'strict and containing', including electronic monitoring, reporting requirements and testing requirements.[220]
4. On the one hand, it might be thought that the tight supervision framework has left the respondent with little room for non-compliance, and the potential consequences of contravention provide significant motivation for compliance. However, as I understood Dr Wynn Owen's evidence, the reduction of the risk factors in this domain, in particular in respect of treatment and supervision, ought to be regarded as a significant achievement by the respondent, having regard to the onerous nature of the conditions. Nevertheless, Dr Wynn Owen did not suggest that the respondent's risk could be adequately managed in the community, at the time of the hearing, in the absence of the conditions of a supervision order. He was not asked to express an opinion about that.
5. The scope for management of the respondent's risk in the absence of a supervision order would be limited. In the absence of a protection order made under Part V of the CP(OR) Act, the respondent's obligations would be confined to reporting to police periodically to provide his personal details as set out in s 26(1) of the CP(OR) Act. While the breadth of the information a reportable offender must provide is extensive and is intended to enable identification of any means by which the person may communicate or access the internet, and whether the person may be coming into contact with children, the reporting obligations do not restrict the reportable offender's movements or conduct, and do not provide for supervision and electronic monitoring in the same comprehensive manner that a supervision order would do (as proposed in this case).

1. Dr Wojnarowska agreed that there had been a noticeable improvement in the respondent's circumstances within this domain. The respondent had demonstrated an ability to engage and benefit from treatment, both in terms of what had been reported by those providing treatment and in the way he presented during the interview.[221] He had also made progress in respect of his manageability under the supervision order.
2. Like Dr Wynn Owen, Dr Wojnarowska was of the opinion that, overall, the respondent's compliance with the order had been good, particularly in light of the respondent's history of antisocial behaviour and dishonesty. She considered the breaches to be minor. However, she noted that it is unknown whether the respondent would continue with his prosocial lifestyle if he were no longer subject to a supervision order.[222] Given that the current conditions are quite strict, it is hard to quantify the risk if all of the restrictions under the order were to be removed.[223]

1. Dr Wynn Owen identified the respondent's most likely form of re‑offending to be similar to his past offending.[224] That is, there would be some source of stress, likely in the context of an interpersonal conflict in the respondent's life, or because of isolation or loneliness. The stress would lead to a return to the use of alcohol. Through the establishment of a friendship with a parent, grandparent, carer, or someone in a similar situation having the care of a child or children, the respondent would gain access to a child or children aged 5 to 14 years. He would groom the child over a period of time before committing sexual offences.[225] Dr Wynn Owen was of the opinion that the respondent's motivation in committing sexual offences would be 'in part ongoing sexual deviance, and in part pathological coping and to meet unmet emotional and non-sexual intimacy needs'.[226]
2. Dr Wynn Owen also described what an escalation of the respondent's offending might involve.[227] Such escalation may be in relation to the physical harm caused to the victim, or offending against a vulnerable victim other than a child. However, Dr Wynn Owen noted that he identified the potential escalation only because he was prompted to do so by the RSVP. He reiterated that the most likely offending scenario would be as described in the preceding paragraph.[228]
3. I asked Dr Wynn Owen for clarification of his opinion as to what would motivate the respondent to offend:[229]

Have I understood correctly that the second part to do with 'pathological coping and to meet unmet emotional and non-sexual intimacy needs' does not have anything to do with libido, or does it? --- No. So I think that there's not a purely sexual motivation to this. It's not just about an uncontrolled and very high libido. It's about not having a range of other needs met and using this as a part of a way to - to meet those needs. So difficulties in talking with adult women was one of the factors that has been significant in his past life and he acknowledges that that may have made it easier for him to talk to children, for example. So I think it's a combination of meeting other needs and the sexual drive.

1. It is apparent, therefore, that the matters discussed under the heading of 'Social adjustment' above are particularly relevant to assessing the level of the risk that the respondent would offend in the way described by Dr Wynn Owen.
2. As to the imminence of sexual offending, Dr Wynn Owen said that, given that the respondent's pattern of offending generally required the development of a relationship of trust with (and usually authority over) his victim and some grooming, which could take some months or years, any offending would not be imminent in his case.[230] Dr Wynn Owen took into account the fact that some of the respondent's offending had been opportunistic, and there was a possibility that could occur again. However, he would have expected such offending to occur within the first couple of years after the respondent's release, when there would have been opportunities. As the respondent had not offended during that time, he considered it to be less likely that the respondent would offend in an opportunistic way.[231]
3. I explored that issue further with Dr Wynn Owen, in the context that he had indicated the motivation for sexual re‑offending would involve issues apart from sexual drive, and may include a reaction to stress:[232]

On the face of it, the scenario of being unable to cope or having his emotional and non-sexual intimacy needs met as a motivation for offending might suggest something that happens more on the spur of the moment, if you like, or without grooming. I'm just trying to understand how that fits in with the notion of grooming? --- It's something, looking at Mr Kyles' pattern of offending, that has been - he has developed - he has got into a situation where a number of stressors have been laid upon him over a period of time.

Yes? --- But then he has either not had a successful intimate relationship or there have been tensions within a relationship and that's one of those things that he has moved towards increasingly close contact with children and then sexual offending against children. The occasion where he picked up the young boy was an occasion where there was a degree of - there was conflict and just an immediate reaction to not coping. But that appears to be, pretty much, the only time that that has happened. It was very, very early on. So I didn't get the sense that there would be an opportunistic reaction to not coping with one stressor. Yes. I think it more likely that there will be a layer upon layer of different stresses and other needs not being met, in the context that he actually started to get access to these children.

1. Dr Wojnarowska was of the opinion that the likely scenario in which the respondent would re‑offend sexually would start with alcohol consumption at social functions, which, while in moderation at first, would progress to alcohol abuse and dependence, due to the respondent's historical pattern of drinking. The respondent would then attend social events where children were present, and he would likely reoffend when disinhibited by the effects of alcohol.[233]
2. Dr Wojnarowska said that, given the respondent has said he relies on social events and barbeques to create structure in his life and make friendships (which is positive), she is concerned that such events are usually associated with people drinking alcohol, and if not under the threat of a supervision order, the respondent may 'allow himself to try to fit in within the group and start drinking'.[234]

The respondent's sexual interest and functioning at the time of assessment

1. The extent to which the respondent continues to have a sexual drive and an interest in sexual intimacy, including a deviant sexual interest in children, is obviously relevant to his risk of committing a serious sexual offence.
2. The respondent told both Dr Wynn Owen and Dr Wojnarowska that he had stopped masturbating after he was released from prison and that he had no sexual interest or sexual drive, and, in particular, had not had any sexual fantasies about children.[235] As I will discuss in the next section, it is possible that the medication the respondent has been taking to deal with his anxiety has affected his libido. However, neither psychiatrist was able to make a reliable assessment of the respondent's level of sexual interest or sexual drive because of the respondent's own lack of clarity on the subject. The respondent's expressed desire to have a sexual relationship with Ms H would appear to be at odds with his claimed lack of sexual interest or sexual drive.
3. Dr Wynn Owen said:[236]

... this is one of the areas that, yes, well, I can't be clear about with Mr Kyles to actually understand his libido, in that on the one hand, he has suggested he would like to have a sexually intimate relationship with Ms H, on the other hand he says he has got no libido, doesn't think about anything sexual, has never really thought about anything sexual, has never had sexual fantasy and, particularly, has never had sexual fantasy about children. There are a number of reasons why this may be his position, and I'm sure part of that is shame and so on, in relation to his past offending, in terms of acknowledgement of those things. But I didn't get a sense, or had a clear view, of his current libido.

1. Dr Wynn Owen elaborated further when asked whether aging would contribute to a reduction of the respondent's libido:[237]

And, of course, there's also the age related amelioration of Mr Kyles' libido? --- Well, one would expect that over time, particularly after the age of 60, that libido reduces. It's not - doesn't occur in everyone, but it certainly is very, very common. And after that age libido drops off quite quickly in males.

Yes. Did you have a discussion with Mr Kyles about that? Whether he had had a ...? --- Mr Kyles very clearly said to me that he didn't even masturbate any more. He had decided to stop doing that when he left prison and had not done so since. However, of course, that's also -timing is also associated with starting the Citalopram, which may have made that more difficult - to achieve an outcome. However, one would expect there has been a degree of age-related decline. I just didn't get a lot of - I didn't get a sense that I really understood, or was going to get clear responses, about sexual thinking and function.

Yes? --- And that one area was something which even Mr - I got the sense Mr Kyles didn't really understand in himself.

1. Similarly, Dr Wojnarowska said that, although she does think the respondent's libido has decreased over the years, particularly given his age, she was not able to assess the extent of the respondent's current sexual drive. She said the respondent told her that he had stopped masturbating and had no sexual thoughts or sexual drive, but she said it is 'difficult to imagine that sexual drive and sexual thoughts magically disappear in a person who is 67 years old'.[238]
2. In any event, as I noted earlier, Dr Wojnarowska said, as a general proposition, that paedophiles maintain their sexual interest well beyond the age of 60 years, which is why she was of the opinion that there should not be a reduction in the score under STATIC‑99R attributable to age in the respondent's case.[239] Further, if, as Dr Wynn Owen indicated, the motivation for sexual offending may stem from factors other than sexual drive (for instance, from unmet needs for an emotional relationship or non‑sexual intimacy), the lack of or reduced sexual drive might not be particularly significant as a factor that would prevent the respondent from offending. However, a large part of the respondent's sexual offending involved penile penetration of the children against whom he offended, which would suggest that his own sexual gratification was an important factor.
3. Irrespective of the existence of sexual interest and sexual drive, Dr Wynn Owen said he did not get a sense that the respondent was preoccupied with sexual thoughts. He said:[240]

[T]here was certainly an awareness, an awareness of children, but it did seem to be directed to, 'How do I make sure that I don't come into contact?' And that's something that's partly driven by being on a supervision order. You know, you do have to be alert to those things.

... But I didn't get a sense of a deviant sexual preoccupation, or even a general sexual preoccupation.

1. At the time of the hearing, the respondent was taking Citalopram, an antidepressant and anxiolytic (used to reduce anxiety).[241] It is an SSRI.[242] It was prescribed as a result of the finding by Dr Hall in his assessment for the 2011 proceedings that the respondent suffered from anxiety and had a long‑term social anxiety disorder.[243]
2. As an SSRI, Citalopram can have an anti‑libidinal effect.[244] As Dr Wojnarowska explained, some men experience a significant reduction of libido, even on the low dose (20 mg)[245] being taken by the respondent.[246] She also acknowledged that a reduction in libido could also result in a reduction in deviant sexual thinking.[247]
3. When asked whether the medication has had an anti‑libidinal effect on the respondent, Dr Wynn Owen said he found it difficult to know the answer, because the respondent had provided vague and in some cases contrary information in that regard.[248]
4. Dr Wojnarowska said that the respondent indicated to her that the medication may have contributed to his lack of sexual drive.[249] However, as I noted earlier, Dr Wojnarowska said she was not able to assess the extent of the respondent's current sexual drive.

1. Both Dr Wynn Owen and Dr Wojnarowska were asked in cross‑examination about the respondent's strategies for avoiding the risk of sexual re‑offending, and whether those strategies mitigated his risk.
2. Dr Wynn Owen was asked whether, in his opinion, the respondent had a 'very well developed strategy on how to avoid contact with children'. He said:[250]

I was impressed that he described a number of ways that he was using, and had been using for some time, to avoid children, in the sense that - what I was looking for was both the understanding that it was necessary - and why, and then the behavioural change that demonstrated that it was occurring. And it sounded like that had ... occurred. Which is, really, how you look for real learning. And there appeared to have been some real learning in that domain.

1. He elaborated on the strategies outlined by the respondent as follows:[251]

When I assessed him he didn't, sort of, parrot fashion repeat what had happened in his ISOTP or in his discussions with Mr Summerton, but was able to talk about risk scenarios and to tell me what he would do. And in the end, the bottom line for him was very much to avoid contact with children. But he explained how he did that on the street and in shops. How he would tell other people that he could not be in contact with children and so on.

1. Dr Wojnarowska also agreed that the respondent had outlined, in detail, risk situations that he has faced and what strategies he has employed to avoid risk. She agreed that would indicate that the respondent employed those strategies on a daily basis. She said that he has had a lot of practice implementing the strategies over the years, being a period of some six years at the time of the assessment for these proceedings.[252]
2. When asked if she would say that 'it has become part of his behaviour', she said:[253]

Yes. It can be called a learned behaviour now in terms of the avoidance of risk and risk situations associated with children, yes.

1. As I outlined at the start of my consideration of the evidence of Dr Wynn Owen and Dr Wojnarowska, both concluded that the respondent's risk of committing a further serious sexual offence had reduced since the commencement of the supervision order, although the risk was still assessed to be average (for a previous sex offender) by Dr Wynn Owen, and high by Dr Wojnarowska. I have discussed in detail the findings that underpinned the conclusion of a reduced risk. A convenient summary was given by Dr Wynn Owen in his evidence, where he said that the indicators of a reduction in risk were as follows:[254]

(1) The respondent had not committed a new sexual offence in the time that he had spent in the community. Dr Wynn Owen noted that being in the community does present an offender with an opportunity to further offend, notwithstanding the constraints of a supervision order.

(2) The respondent had returned to the community after a very long period in prison without becoming distressed or acopic (i.e. unable to function or cope). Dr Wynn Owen noted that, after such a lengthy term of imprisonment, many people would be quite institutionalised and would find it difficult to cope with their reintegration.

(3) As well as being assisted by the ongoing relationship with Ms H and her family, the respondent had formed and sustained a number of new pro‑social relationships.

(4) The respondent was able to talk about his risk scenarios and detail his strategies for avoiding them, and the manner he delivered that information appeared to Dr Wynn Owen to be genuine and showed that the respondent understood he was doing those things to avoid the risk of reoffending.

(5) Risk reduces with advancing age with time spent in the community without offending.

1. Of course, as I have already indicated, Dr Wojnarowska did not consider that advancing age was a factor that reduced the respondent's risk, given that he has been diagnosed with paedophilia, although she acknowledged that his age and the medication he is taking may have resulted in reduced libido. Further, Dr Wojnarowska's assessment that the respondent met the criteria for the presence of psychopathy also meant that her estimation of risk was elevated, compared to Dr Wynn Owen's estimation. Nevertheless, on my analysis of Dr Wojnarowska's evidence, the other factors identified by Dr Wynn Owen aptly summarise in broad terms the factors on which she relied in concluding there had been a reduction of risk.
2. In his report, Dr Wynn Owen said that it was not possible to determine the extent to which the conditions of the supervision order had contributed to the reduction of the respondent's risk. However, he was of the opinion that there had been a number of changes to the respondent's attitudes and thinking, which tended to confirm that part of the reduction of risk is due to real attitudinal and behavioural change.[255]

1. When asked about the respondent's future counselling needs, Dr Wynn Owen was of the opinion that, if the respondent continued to be subject to a supervision order, it would be a source of stress for him (particularly as it would be an 'unwanted outcome'),[256] which would increase the risk that he might, for example, return to the use of alcohol. In those circumstances, it would be worthwhile for an assessment to be made early in the period of the new supervision order as to whether the respondent required any ongoing therapy.[257] Dr Wynn Owen did not believe that any further individual therapy was required, at the time of the hearing, to address the respondent's offending cycles or risk management.[258]

1. The respondent told Dr Wynn Owen that he is motivated to comply with the supervision order and not to commit an offence, because he does not want to return to prison. The respondent knows that any contravention may lead to him being imprisoned. He has expressed a fear of becoming unwell and dying in prison. The respondent has said there are certain things he wants to do with his life; he wants to 'enjoy some of his life'.[259] Dr Wynn Owen noted that this was a theme the respondent had raised in the past with a psychologist.
2. Dr Wynn Owen said he was not sure, therefore, whether the respondent's motivation is rooted in a genuine desire not to commit a sexual offence, or just in a desire to avoid going back to prison.[260] Of course, it could be both. While the desire to avoid imprisonment may suffice as a deterrent, Dr Wynn Owen noted that for the duration of the supervision order, the risk of imprisonment had been associated with a contravention of the conditions of that order, which were designed to allow intervention before the risk of the respondent committing a sexual offence became imminent. In those circumstances, Dr Wynn Owen observed:[261]

[I]f you take away the risk of re-imprisonment, then I think that might be - or the risk of - you're talking about breach - immediate breach and re-imprisonment, then that might make a difference to his choices about how he manages his behaviours.

Consideration of whether the respondent is a serious danger to the community Overview

1. In June 2013, Jenkins J was satisfied the respondent remained a serious danger to the community essentially because of his extensive record of serious sexual offending against children, even though the offending had occurred over 20 years previously, the fact that his steps towards rehabilitation had not been tested by time spent in the community and the fact that he had not remained offence‑free in the community for a significant period of time.[262]
2. Her Honour identified the numerous factors she took into account in deciding that it was appropriate to release the respondent on a supervision order.[263] He had made considerable progress in his treatment and it had been assessed that his risk of sexual re‑offending had decreased. That reduction had resulted from a sustained commitment to change.[264] The respondent had greater insight into the causes of his offending and a positive plan for his conduct whilst in the community. Jenkins J considered that the conditions of the supervision order would provide adequate protection of the community, in particular in respect of the prohibition on the respondent's use of alcohol and the supervision and monitoring that would occur in that regard, and in respect of measures that would prevent him from gaining access to children. Her Honour also took into account that the respondent would be required to attend the community‑based sex offender maintenance programme. She noted the evidence of Dr Hall concerning the continuing reduction of risk after a person reaches the age of 60 years, and the fact that, according to Dr Hall, the period of 5 years of supervision was at the 'outside of the length of a supervision order which was required to ensure that the community was protected'.[265]
3. Despite some contraventions, which may properly be described as missteps, and some resistance to supervision at various stages of the supervision order, I am satisfied that the respondent's compliance has generally been good, he has maintained his commitment to change and his risk of committing a serious sexual offence has reduced further. In my opinion, there can be no doubt that the supervision order has been significant in the reduction of the respondent's risk, but I accept that part of the reduction of his risk is due to real attitudinal and behavioural change and self‑awareness. To a significant degree, that change may be the result of the group and individual treatment in which the respondent participated in the community, and such treatment was mandated by the supervision order. However, I am satisfied that the respondent has been able to rely on internal mechanisms and the support of Ms H and her son, to consolidate the change. Further, with the assistance of the treatment, he has been able to identify and implement appropriate strategies to avoid situations that could lead to sexual re-offending against children. The improvement in his interpersonal skills has also assisted him in the implementation of those strategies.
4. In short, the respondent has made further progress in the areas that Jenkins J relied upon to find that his risk could be adequately managed under a supervision order to achieve the adequate protection of the community. The respondent's steps towards rehabilitation have now been tested by time spent in the community, and he has remained offence-free in the community for a significant period of time. Despite the progress, both Mr Summerton and Dr Yewers expressed reservations about whether the respondent will ever achieve significant insights into his overall functioning, as his capacity for 'perspective taking' was considered to still be limited.[266] Dr Yewers observed some evidence of a continued limitation in the respondent's ability to solve problems in interpersonal reactions and relationships.[267] She anticipated that he would be prone to encounter issues in the future in respect of those areas in which he had shown improvement.
5. I note, however, that Dr Yewers saw the respondent in May 2017. Neither Dr Wynn Owen, nor Dr Wojnarowska, who saw the respondent in 2019, indicated any reservation about the respondent's ability to manage relationships. Both were of the view that he had demonstrated an ability to build and maintain pro‑social friendships, although, as Dr Wynn Owen noted, he had not had the opportunity to experience an intimate relationship. The relationships were considered to be protective and supportive. However, as Dr Wojnarowska observed, there was the risk of some of the friendships collapsing if the respondent's friends became aware of his offending, and, if that occurred, it would be a major stressor for the respondent.

1. Notwithstanding the progress made by the respondent, the applicant submitted that there continues to be an unacceptable risk that the respondent would commit a serious sexual offence if he were not subject to a further supervision order. In essence, the applicant submits that, given the diagnosis of paedophilia, which is a lifelong disorder, combined with the presence of psychopathy (if Dr Wojnarowska's opinion is accepted in that regard) or at least psychopathic traits, the court can be satisfied that the risk of the respondent committing a further serious sexual offence is elevated when compared to sexual offenders who do not have those characteristics. However, the applicant submitted that it may not be necessary for the court to make a decision as to the presence of psychopathy, because, whether the risk is characterised as 'high' (per Dr Wojnarowska) or 'average' (per Dr Wynn Owen) if the respondent is not subject to a supervision order, it is an unacceptable risk, given that the respondent's potential victim or victims will almost certainly be a child or children and that he is likely to cause significant physical and psychological harm to any such victim and his or her family. The paramount consideration is to ensure the adequate protection of the community, and it is necessary for the respondent to be subject to further control to achieve that objective.[268]
2. The applicant further submitted that the most significant factor that indicates the respondent's risk is still at an unacceptable level is the potential for the respondent to relapse into alcohol use, which has been a significant risk factor because of its disinhibiting effect. Doubts were expressed by Dr Yewers, Dr Wynn Owen and Dr Wojnarowska about the respondent's resolve to avoid the use of alcohol should he no longer be subject to a supervision order. The applicant submitted that, although the respondent's alcohol dependence disorder has been in remission, the extent of his problem with alcohol use in the past is demonstrated not only by the fact that he was intoxicated at times when he committed sexual offences, but also by his criminal record more generally, which shows that he was convicted on three occasions for driving with in excess of 0.08% alcohol in his blood and on six occasions for driving under the influence of alcohol, contrary to s 63 of the Road Traffic Act 1974 (WA). The applicant submits that those convictions demonstrate that the respondent had an acute alcohol problem, at least in the years before he commenced to serve his last sentence of imprisonment.
3. Further, the applicant referred to the uncertainty expressed by both Dr Wynn Owen and Dr Wojnarowska as to the extent to which the conditions of the supervision order, rather than internal protective measures, have resulted in the respondent not committing a sexual offence during the term of the supervision order.

1. The respondent submitted, in effect, that the extent to which the supervision order may have contributed to the respondent's self-awareness and changes in his attitudes and behaviour is beside the point. The fact that the respondent has gained insight into his offending and its causes and impact, no longer denies or minimises his offending, has an appreciation of his risk and risk situations, and has developed and implemented strategies to avoid the risk of re‑offending, means that he is committed to remaining offence‑free in the community and has the ability to do so if he were no longer subject to a supervision order. It was submitted that, having regard to the amount of time over which the respondent has demonstrated the changes, the court can be satisfied they are enduring. Further, the fact that the respondent did not drink alcohol for the duration of his last term of imprisonment and has not drunk alcohol (apart from the small amount that resulted in the breach charge) while he has been in the community for over 6 years (at the time of the hearing) indicates that he can remain abstinent. It was submitted that, although he has indicated a desire to have a drink while socialising with Ms H and friends, he also appreciates the link between alcohol use and his offending, and he is motivated not to offend because of the risk of imprisonment, which he fears.
2. It was also submitted by the respondent that, while it must be accepted that the supervision order has necessarily affected the respondent's behaviour, he has not had the opportunity to demonstrate that he can remain abstinent and implement strategies to avoid committing a sexual offence without the conditions of a supervision order. However, his conduct during the term of the supervision order has involved more than simply adhering to the letter of the conditions; he has shown that he can develop his own strategies to minimise his risk of committing a sexual offence.
3. In summary, it was submitted by the respondent that he has rehabilitated to such an extent that his risk of committing a serious sexual offence, of the kind he has committed in the past, ought no longer to be regarded as being at a level that is unacceptable if he is not subject to further control under the Act. The respondent emphasised that he has not committed a sexual offence since the early nineties. However, as his counsel acknowledged, there has not been any period since the early nineties when the respondent has not been in prison or subject to a supervision order in the community. The fact that he has not committed a sexual offence during the term of the supervision order may simply indicate that the order has been effective in providing adequate protection of the community. The extent to which it indicates an abatement of his risk of sexual re‑offending to a level where the controls of a supervision order are no longer necessary to protect the community, depends on an assessment of all of the evidence I have set out above.

Conclusion in relation to whether the respondent is a serious danger to the community

1. The determination of whether there is an unacceptable risk that the respondent will commit a serious sexual offence if not subject to a supervision order involves an evaluative and predictive finding of fact, based on the factors in s 7(3) of the Act.[269] It requires the court to balance competing factors, which include, on the one hand, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising, and on the other hand, the serious consequences for the offender if an order is made, in that the conditions will necessarily involve curtailment of his freedom within the community and potentially onerous obligations.[270]
2. The fact that the respondent has a propensity (i.e. an inclination or tendency[271]) to commit serious sexual offences against children ranging in ages from 4 to 12 years has been determined in the previous decisions under the Act, which I discussed earlier in these reasons. As Murray AJA said in GTR:[272]

The word refers to some identifiable characteristic of the offender, something in his make up or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.

1. In the respondent's case, the characteristic is a diagnosable disorder, namely paedophilia. The propensity is demonstrated by the respondent's extensive history of offending.
2. In his judgment in Kyles in 2011, Commissioner Sleight said that it would remain the case that the respondent would have an 'ongoing propensity' to commit serious sexual offences in the future 'until his sexual deviancy is treated by way of an intensive sexual offender's treatment programme'.[273] In my opinion, his Honour is to be understood as indicating that the propensity may be brought under control and managed with appropriate treatment, rather than that it would be eliminated. Having regard to the evidence of Dr Wynn Owen and Dr Wojnarowska in these proceedings, I am satisfied that paedophilia is an enduring disorder that is part of an individual's personality. Moreover, given their assessments of the respondent's risk and the identification of risk scenarios, the respondent's propensity to commit offences of the kind he committed in the past remains. The assessment of risk concerns the likelihood of the propensity materialising. It may be that if the likelihood has diminished to a vanishing level, it is no longer meaningful to speak of the existence of the propensity, but that is not the case here.
3. The nature of the risk is informed by the sexual acts committed by the respondent upon children in the past, which included acts likely to cause significant physical and psychological harm to the children, as well as emotional trauma for their families. It is offending that has the potential to ruin the lives of victims. The paramount need to protect the community from such offending is self‑evident. In my opinion, the nature of the risk is such as to weigh heavily in the balance in favour of making an order that would control the respondent's behaviour and allow for close monitoring and supervision while he is in the community, unless I could be confident that he has the capacity and resolve to manage his risk without such external measures.
4. I accept the applicant's submission that the difference in the assessment of risk made by Dr Wynn Owen and Dr Wojnarowska respectively does not affect the determination of whether the respondent is a serious danger to the community, and it is not strictly necessary to resolve the difference. That difference stems largely from the different views they took about the significance of age in the STATIC‑99R scoring and whether the respondent meets the threshold for psychopathy under the PCL‑R. In relation to dynamic factors, Dr Wynn Owen and Dr Wojnarowska largely agreed about the areas of improvement and the areas that continue to be of concern.
5. As both psychiatrists explained, given that the PCL‑R involves the exercise of clinical judgment, it is not unusual for clinicians to reach different scores without any significant disagreement about areas of concern in the subject's personality and psychological make‑up. While I accept that there is uncertainty as to whether the respondent meets the cut-off for psychopathy under the PCL‑R, I am satisfied by Dr Wojnarowska's evidence[274] that the respondent presents with psychopathic traits (albeit largely based on past conduct and attitudes) which, when combined with his paedophilia, elevates his risk of future sexual offending.
6. I agree with the applicant's submission that the potential use of alcohol by the respondent in the future is the most significant dynamic risk factor that affects the assessment of whether there is an unacceptable risk that he will commit a serious sexual offence. The evidence of both Dr Wynn Owen and Dr Wojnarowska, summarised at [173] to [181] above, supports the conclusion that, while the respondent has demonstrated insight into the association between his alcohol use and his sexual offending, and appears to be motivated to avoid alcohol use because of the potential consequences if he were to commit an offence, he has also demonstrated ambivalence in relation to the future use of alcohol, having indicated to both psychiatrists that he would like to be able to have a drink with Ms H and in a social setting with friends. The respondent is to be commended for his candour in that regard, but it does raise the concern expressed by both psychiatrists that, despite his substantial period of abstinence, the respondent may be at risk of relapsing into alcohol abuse without the constraints imposed by a supervision order.
7. Although the respondent's breach involving the drinking of a small amount of alcohol may be regarded as a misstep, which does not detract from his overall effort in remaining abstinent, I agree with Dr Yewers' opinion that the incident nevertheless casts some doubt over his fortitude to abstain from alcohol use in the future in the absence of a supervision order. The significance of the conditions of the supervision order in preventing the respondent from relapsing into alcohol use cannot be underestimated. The respondent was prosecuted on the occasion he consumed a small amount. The threat of contravention proceedings and the prospect of being returned to detention were significant deterrents.
8. On the basis of the expert evidence to which I have referred, I am satisfied that, at this stage, although the respondent has developed other strategies for dealing with stresses in his life, if he were not subject to the constraints and monitoring provided by the conditions of a supervision order in respect of alcohol use, the temptation to have a drink socially, believing he would not be placed at risk of sexually offending against children in that context, would remain a real risk for the respondent. As Dr Wojnarowska said, he is much more likely to relapse into alcohol abuse and dependence because of his history of alcohol abuse, even if he only intends to drink on a social level.
9. Although the respondent has protective and supportive friendships in the community, there are some reservations, as I observed in the preceding section, about the perseverance of his ability to solve problems in interpersonal reactions and relationships. Moreover, while it is understandable that the respondent has not wanted to be open about his past with at least some of his friends, for fear of jeopardising the friendships, it is an area of vulnerability which could lead to stress in the future, as explained by Dr Wojnarowska.
10. I am satisfied, on the evidence in these proceedings, that the respondent has good intentions to lead a prosocial lifestyle and avoid risk‑laden circumstances, in particular coming into contact with children and drinking alcohol. However, as both Dr Wynn Owen and Dr Wojnarowska acknowledged, it simply cannot be known whether the respondent would continue to ensure he did not engage in behaviour that would put him at risk of committing a serious sexual offence if he were no longer subject to the strict conditions of a supervision order and the threat of a return to detention were removed. Such a threat exists currently, not only as the almost inevitable consequence of the respondent committing a sexual offence, but as a possible consequence of engaging in behaviours that may be precursors to serious sexual offending and which constitute breaches of the supervision order. The adequate protection of the community requires early intervention when such precursor behaviours occur. I am satisfied that there continues to be a real risk that the respondent will engage in such precursor behaviours, in particular returning to the use of alcohol.
11. Having regard to all of the evidence and the factors to which I have referred, I am satisfied to a high degree of probability that there continues to be an unacceptable risk that the respondent would commit a serious sexual offence if not subject to a supervision order.

Substantial compliance with the standard conditions of a supervision order

1. As I noted earlier, before making a supervision order, I am required by s 17(3) of the Act to be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order. I must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.[275]
2. It will be apparent from what has preceded that I am so satisfied. The applicant did not submit otherwise. Indeed, the application was made on the basis that the respondent had demonstrated his capacity to comply with such an order.

Proposed conditions for supervision order Overview

1. A draft supervision order was prepared by COMU and was part of Ms Comery's Community Supervision Assessment Report. It contained proposed conditions which the department considered to be appropriate and necessary for the adequate management and monitoring of the respondent's risk of committing a serious sexual offence, having regard to the expert assessments that had been made of that risk. It largely reflected the terms of the existing order, with changes in the formulation of some conditions, but a small number of conditions were omitted and others were added. At the hearing, the applicant produced an amended draft with further additions. In essence, the applicant submitted that the conditions in the final version reflect the measures considered necessary, prior to the hearing, to adequately manage and monitor the respondent's risk. The applicant acknowledged the court would need to assess the necessity of conditions in light of the evidence at the hearing.
2. Both Dr Wynn Owen and Dr Wojnarowska were asked in general terms what issues the conditions of a supervision order should address, if the court determined that a further order was necessary, and whether a reduction of the current conditions would be appropriate to reflect the reduction of risk. They were also asked for their opinions about specific conditions in the amended draft order.
3. In brief, both considered that, if a supervision order were made, it should address and assist in the management of the respondent's dynamic risk factors. Dr Wynn Owen referred in particular to the respondent's use of alcohol and the potential for isolation and loneliness. In fact, according to both experts, the need to address isolation and loneliness, as factors that may put the respondent at risk of committing a further sexual offence against a child, is a reason to consider easing the conditions to enable the respondent to visit the residence of his close friend, Ms H. As I will discuss below, that is an outcome that cannot be dealt with sensibly within the conditions of a supervision order. Rather, it is a recommendation for the manner in which the relevant authorities should approach the implementation of conditions that restrict the places the respondent can attend.
4. Both Dr Wynn Owen and Dr Wojnarowska were asked for their opinion about the additional conditions proposed by the applicant. It should be noted that their answers, in particular from Dr Wynn Owen, were against the background that both experts considered there should be some alleviation of the burden of the current supervision order so as to provide the respondent with a greater degree of freedom to reintegrate into the community, given his reduced risk, and to enable him to demonstrate ultimately that the risk that he will commit a serious sexual offence is no longer unacceptable.
5. It is convenient to deal first with the desirability of relaxing the supervision order, before dealing with the appropriateness of the proposed conditions, in particular the new conditions.

1. Although I have determined that the respondent remains a serious danger to the community, and that the adequate protection of the community requires the making of a supervision order, it does not follow that the conditions of such a supervision order need to be identical to the conditions of the previous supervision order or address all of the risk factors that were previously evident.
2. Dr Wynn Owen was of the opinion that it would be worthwhile, should there be a further supervision order, that there be some shift in the conditions to acknowledge that the respondent has not committed a sexual offence for more than five years whilst in the community.[276] In the context of acknowledging, in answer to a question from me, that certain conditions would not be particularly onerous for the respondent, Dr Wynn Owen said:[277]

But I think the point your Honour makes about should a supervision order continue that there's some shift to acknowledge the five years of being offence free, is probably something that's worth doing. He may react to other additional conditions which constrain him further or continue exactly the same level of constraint. One of those factors, for example, would be GPS monitoring which I know is not ever at the discretion of the CCO. But the difficulty we have is, at the end of a supervision order, we now come to a further division 2 hearing. What's to shift in the next five years if we haven't seen somebody being given the ability to demonstrate that they're not going to offend under a lower level of supervision? If it just stays the same, we could well be in the same position other than a change of age in five, or eight, or whatever years' time. So, look, I'm just concerned that that doesn't get set up through this process.

1. Of course, while the possibility that the respondent would have an adverse reaction to additional conditions or the same level of constraint is a relevant consideration in deciding whether the conditions of a supervision order would be effective in continuing to mitigate his risk of committing a serious sexual offence, the paramount consideration is ensuring the adequate protection of the community.[278] Further, a condition in respect of electronic monitoring is a standard condition that must be included in the supervision order, although, as I will discuss below, contrary to Dr Wynn Owen's understanding, a CCO does have discretion to suspend the use of electronic monitoring.
2. However, Dr Wynn Owen's view is concerned with broader considerations about the approach to managing risk, having regard to the purpose of the Act, which is to ensure the adequate protection of the community. In that context, he considered that, when a person has been subject to a supervision order for five years without committing a serious sexual offence, one would expect that there would be some change to the order which would allow the person a greater degree of freedom.[279] He acknowledged that a greater degree of freedom would bring, potentially, a greater degree of opportunity to offend, but that would be within a narrow context in which there would still be 'risk focused' conditions to manage that risk.[280]
3. Dr Wynn Owen noted that such a relaxation of conditions is not a 'reward', but rather an important step towards formal reintegration into the community:[281]

I think that from the point of view of what the Act is trying to achieve - which is the safety of the community - that a stepped change [is appropriate] - unless there was no change in risk, if there's no change in risk then I wouldn't be suggesting the steps to change. But if there is a change in the level of risk, it seems reasonable that there's a variation to conditions to reflect that change.

1. It is correct to emphasise that the sort of change contemplated by Dr Wynn Owen is not a reward, in the same way that a div 2 order is not punishment. In each case it is a matter of identifying the necessary means of protecting the community when a person is found to be a serious danger to the community. The scheme of the Act recognises that the level of a person's risk may change, and the order that is made should be no more than is necessary for the adequate protection of the community.
2. Ultimately, Dr Wynn Owen's concern is that if the respondent is not given an opportunity to demonstrate he is able to progress, and not reoffend, on a lower level of supervision, there will never be a change in the respondent's capacity to demonstrate lower risk.[282]
3. Although Dr Wojnarowska was not asked to address the issue to the same extent, she identified a number of areas in which there should be a relaxation of supervision, because of the respondent's reduced risk of sexual reoffending (albeit that, in Dr Wojnarowska's opinion, the risk is still high).
4. I accept the general propositions advanced by Dr Wynn Owen, set out in the preceding paragraphs. I also accept, on the basis of the evidence of Dr Wynn Owen and Dr Wojnarowska that the respondent's reduction of risk, as demonstrated by his behaviour and changes in his beliefs and attitudes, means that there can be a reduction of the supervision to which he will be subject, while still ensuring adequate protection of the community. The question is in what respects and to what extent the supervision should be reduced, and how such reduction is to be achieved. As will appear below, in many respects it is not a matter of removing conditions, or avoiding the addition of conditions; rather, it is a matter of how the conditions are implemented, having regard to the recommendations of the experts and the views expressed by the court.
5. In that regard, there were two particular areas identified by Dr Wynn Owen and Dr Wojnarowska in respect of which they considered there should be some relaxation.
6. Dr Wynn Owen was asked about the importance of the respondent being able to do things he enjoys, such as camping, fishing and crabbing. He was of the view that, should there be a new supervision order, consideration should be given to allowing the respondent to engage in forms of relaxation that are productive and pro‑social and do not appear to increase his risk, so that he can achieve the enjoyment of life he desires.[283]
7. Similarly, Dr Wojnarowska noted that, while the respondent is currently allowed to participate in the activities he likes (for example, going fishing with friends), he must notify his CCO and get permission. She noted that there can be delay between asking for and receiving permission, which can frustrate his plans to engage in a particular activity.[284] Given that being with his friends is a protective factor for the respondent, consideration should be given to giving him permission to engage in such activities on a general basis.[285] In my opinion, that would be a reasonable approach, given that the respondent is required to maintain a diary and would be obliged to report specific activities of that kind, and provided that he was with friends and complied with his obligations in respect of contact with children.
8. Both Dr Wynn Owen and Dr Wojnarowska were of the opinion that consideration should also be given to allowing the respondent to attend Ms H's residence, subject to a condition that would prevent him having access to, or encounters with, children. Both considered such a development to be important to the respondent maintaining a significant relationship that is prosocial and supportive in preventing the respondent from relapsing into committing sexual offences against children. That is particularly so now that Ms H has indicated she would not allow the respondent to have unsupervised access to children at any time.
9. Dr Wojnarowska emphasised that the respondent's prosocial relationships should be encouraged. She noted that the respondent was also close with Ms H's son.[286] In her opinion, being able to interact more freely with Ms H and her son would contribute significantly to the respondent's motivation to lead a prosocial life and his further re‑integration into society.[287] Dr Wojnarowska was of the opinion that, unless the respondent has the opportunity to develop his friendships further, he will be in exactly the same position as he was at the start of the supervision order in 2013.[288] However, she said she would not encourage the respondent going to Ms H's house without notifying his CCO, so there should still be a condition requiring the respondent to obtain his CCO's permission before he goes to Ms H's residence.[289]
10. Dr Wojnarowska was also of the opinion that relaxing the implementation of conditions relating to exclusion zones would also assist with the respondent's further reintegration into the community. However, she considered that, apart from the proposed change in respect of attending Ms H's residence, which Dr Wojnarowska considered to be important, any relaxation in respect of other exclusion zones should be a matter of negotiation between the respondent and his CCO.

1. By way of overview, the proposed supervision order reflects the conditions that have been commonly included in supervision orders in more recent years for persons who have a similar offending history to that of the respondent. However, a supervision order must be tailored for the particular circumstances of the respondent whose case is being considered.

1. Conditions that were included in the respondent's original supervision order which are now omitted are:

(1) a condition that the respondent comply with the requirement of programmes intended to address his offending and/or his risk of serious sexual re-offending, as directed by his CCO;

(2) a condition that, if requested by his CCO, he was to provide a written direction to any medical practitioner to advise the CCO immediately if such practitioner became aware or suspected that the respondent had stopped or intended to stop taking any prescribed medication, or had apparently ceased to consult with that practitioner; and

(3) a condition that the respondent not commit an offence under the Restraining Orders Act 1997.

1. In my opinion, it is appropriate that the first of those conditions be omitted. The respondent successfully completed the sex offender maintenance programme in the community, and there is no indication that he requires or would benefit from any further programme. Individual counselling will be available to him should he require it. That will depend on the extent to which a further supervision order will cause him stress.
2. As for the second omitted condition, it is apparent from the evidence that the respondent has been compliant with his prescribed medication because he appreciates the benefits of the medication in helping him deal with anxiety. There is no suggestion that he would not be honest about his use of such medication. The condition is not necessary for the adequate protection of the community.
3. The last of the omitted conditions is not necessary. There is no evidence to suggest the respondent has engaged in behaviours while subject to the supervision order that put him at risk of becoming subject to a new restraining order. The conditions preventing him from having contact with any of his victims provide sufficient protection against such contact occurring. All of his victims would now be adults. Having regard to the nature of the respondent's offending, there is no suggestion that any of them would be at risk of the respondent offending against them sexually. The need for protection arises from the potential trauma they might suffer from memories of the offending should they come into contact with the respondent.

1. The original supervision order had a number of conditions that imposed a curfew and stipulated the respondent's obligations while a curfew was in place. The conditions were prescriptive and mandated a curfew between certain hours for the first six months of the order, before progressing to a requirement that the respondent comply with a curfew as directed by the CCO under s 19B of the Act, which reposed a discretion in the CCO to direct that the respondent be subject to a curfew. The conditions imposed by Jenkins J placed parameters around the exercise of that discretion.
2. The proposed conditions in the amended draft supervision order submitted by the applicant included a condition in the following terms:

Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

1. Further conditions then stipulated the respondent's obligations whilst subject to a curfew, in similar terms to the equivalent conditions in the original supervision order. As I noted earlier, Ms Comery said the respondent was not subject to a curfew at the time of the hearing, but the conditions were included as a 'fall-back' in case the respondent's situation were to destabilise.
2. When asked if there were any conditions she considered to be inappropriate, Dr Wojnarowska referred to the curfew condition, querying the number of hours for which the curfew would apply. When it was pointed out to her that the timeframe was left open and that it would only apply if the CCO directed the respondent to be subject to a curfew, not constantly, Dr Wojnarowska said:[290]

That's all right, because otherwise I would not see it necessary to have a curfew restriction on a daily basis for Mr Kyles.

1. The need for a curfew condition is, indeed, questionable. Section 19B(1) provides that the purpose of a curfew condition is 'to allow for the movements of a person subject to a supervision order to be restricted during periods when there is a risk of the person committing a serious sexual offence'. While it is a standard condition that must be imposed under s 18(1) of the Act that the person comply with any reasonable direction of a CCO, including a direction under s 19B, it is not a standard condition that the person be subject to a curfew. It is for a CCO to determine whether to direct, pursuant to s 19B, that the person be subject to a curfew requirement.
2. In the respondent's case, although a curfew was mandated for the first six months of the original supervision order, and he was indeed subject to a curfew, his pattern of offending was not really dependent on opportunity based on the time of the day (when a curfew would be appropriate); rather, apart from the first incident, it was dependent on the existence of situations in which he had access to the children, [suppressed], or as a result of gaining the trust of adults who were guardians of the children. The only risk‑related circumstance that a curfew would be likely to avert is if the respondent were to stay at a friend's place where he might come into contact with children whose trust he had gained, and where he could take advantage of an opportunity of being with such children without the adults being aware. One would expect that such circumstances would be averted by requiring the respondent to identify the places he intended to visit and who would be present, the giving of directions preventing the respondent from attending places where the risk may arise and the electronic monitoring of the respondent's whereabouts.
3. However, in light of Dr Wojnarowska's evidence that her only concern was about a continuing curfew, and her acceptance that a condition allowing a CCO to give a curfew direction from time to time was acceptable, I am reluctant to remove a measure that can be utilised to ensure the respondent does not place himself in a situation of elevated risk, of the kind I have described, by requiring him to remain at home at night time if such a situation were to be identified as a real possibility. This is an area in which I consider that the use of the authority to give directions needs to be exercised with circumspection, having regard to the recommendations of the experts in these proceedings, in particular the desirability that the respondent be able to attend Ms H's residence, and the potential counterproductive effect of unnecessary constraints. However, given the risk that continues to exist that the respondent will commit a serious sexual offence, I am satisfied that the option of a curfew should remain available.

1. One of the standard conditions under s 18(1) of the Act is that the person 'be subject to electronic monitoring under section 19A'.[291] Proposed condition 7 in the amended draft supervision order is in precisely those terms.
2. Section 19A provides:

(2) For the purposes of the electronic monitoring of a person, a community corrections officer may -

(a) direct the person to wear an approved electronic monitoring device;

(b) direct the person to permit the installation of an approved electronic monitoring device at the place where the person resides or, if the person does not have a place of residence, at any other place specified by the community corrections officer;

(c) give any other reasonable direction to the person necessary for the proper administration of the electronic monitoring of the person.

...

(4) A community corrections officer may suspend the electronic monitoring of a person subject to a supervision order -

(a) while satisfied that it is not practicable to subject the person to electronic monitoring; or

(b) while satisfied that it is not necessary for the person to be subject to electronic monitoring.

1. By its terms, the effect of s 18(1)(g) is to impose a mandatory requirement for electronic monitoring in accordance with the provisions of s 19A. Having regard to the context of the provision, in light of s 18(1)(g), it is tolerably clear that the word 'may' in s 19A(2) is used to confer authority, rather than a discretion, on a CCO in respect of the means by which electronic monitoring is to be achieved. However, it is also clear that s 19A(4) authorises a CCO to suspend the electronic monitoring of a person if the CCO is satisfied that it is not necessary for the person to be subject to electronic monitoring. It may be assumed that such suspension (that is, under paragraph (b), rather than under paragraph (a)) would not occur unless the CCO was satisfied that electronic monitoring was no longer necessary to ensure the adequate protection of the community. Such a situation might arise, as Dr Wynn Owen contemplated, if the person's risk has reduced sufficiently to warrant the conclusion that the community can be adequately protected by the other conditions of the supervision order.
2. It is in that context that the evidence of Dr Wynn Owen will need to be considered in the implementation of the condition concerning electronic monitoring.

1. One of the proposed conditions which Dr Wynn Owen considered to be unnecessary is a condition that prohibits the respondent from using or possessing prohibited drugs.[292] There is a condition to the same effect, albeit in an abridged form, in the current supervision order. Dr Wynn Owen was of the view that the condition is unnecessary, as there is no suggestion that the use of prohibited drugs was a factor in the respondent's offending. He also noted that such activity was illegal in any event. That may be so, but supervision orders will often include prohibitions relating to conduct that would constitute an offence (for instance in relation to sexual offences). The point of having such conditions in the order is to emphasise behaviours that may contribute to offending and must be avoided, and which may lead to contravention proceedings if the risk of sexual offending is perceived to be rising. While I accept that the condition prohibiting illicit drug use may be addressing an issue that has not previously materialised, and may be unlikely to materialise at this stage, given the respondent's age, it seems to me that it does not add to the respondent's burden, and objectively ought not to give rise to a sense of unfairness. Although the utility of the condition may be questionable, I consider that it is an appropriate augmentation of the conditions concerning alcohol use, given the potential disinhibiting effect of some prohibited drugs.

1. As part of the measures to enable police to monitor the respondent's compliance with the obligations of the supervision order, the current supervision order provides that, if requested, the respondent is to permit police officers to enter and search his residence and/or vehicle for that purpose. The equivalent condition in the draft supervision order adds that the respondent is to 'allow the seizure of any such items that the police officer believes to contravene the conditions of the order'. There is also a condition (number 15 in Annexure A to these reasons) that the respondent is to remain at his residence and/or vehicle when police officers conduct a search of the residence and/or vehicle. Those provisions are now standard in supervision orders. No objection was taken to the additional requirements, and I am satisfied they are appropriate, in particular to enable the police to seize evidence and also to prevent a continued contravention of the order, if there is a reasonable basis for believing that a contravention has occurred.

Conditions relating to computers, the internet and acquisition of images of children

1. There are then four additional conditions (numbered 16 to 19 of Annexure A to these reasons) that relate to the respondent providing information about and access to any computer or other electronic storage device, and information about his internet service providers, to enable the police to ascertain his computer activities. The last of the conditions prohibits the respondent from deleting any data from any computer or electronic storage device in his possession without prior permission from his CCO or WA Police.
2. The need for such conditions generally stems from two possible risk scenarios in the case of a person who has sexually offended against children. The first is that the person may use the internet to identify and groom children for the purpose of engaging them in sexual activity. The second is that the person may acquire and use child exploitation material (in particular involving sexual exploitation) for sexual arousal. It can also occur that a person with paedophilia will acquire images of children that are not indecent, but which may still serve to sexually arouse the person or at least to perpetuate the person's attraction to children. The purpose of the conditions concerning computers and other electronic storage devices is to enable the authorities to monitor the content of such devices to determine if the respondent has engaged in conduct that constitutes an offence or puts him at risk of committing a sexual offence.
3. There is nothing in the respondent's offending history or in his conduct since his release on the supervision order to suggest that he has the ability or the inclination to use the internet to find and groom children for the purposes of engaging with them in sexual activity. The primary purpose of the relevant proposed conditions in the respondent's case appears to be to enable the police to identify if the respondent has accessed child exploitation material or images of children, whether indecent or not. Those possibilities are dealt with in later conditions (numbers 47 and 48 of Annexure A to these reasons) as follows:
   1. Not conduct computer searches for, nor possess or collect in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images.
   2. Not search for child pornographic images, stories or other articles in the written or typed form with references to child pornography during access to any computer or any other device capable of Internet access.
4. Dr Wynn Owen noted that the collection of child exploitation material had not been a factor in the respondent's offending in the past. Therefore, he did not regard either the conditions concerning images of children or child exploitation material, or the conditions concerning the internet, computers or other electronic storage devices to be important to mitigate the respondent's risk of committing a serious sexual offence.[293] However, Dr Wynn Owen gave the following evidence when I sought clarification from him:[294]

Doctor, if there was a change in the future - it may be speculative - but if there was, and if Mr Kyles did engage in that sort of activity, would that be a factor that might be relevant to his risk of reoffending? --- After the long period of offending between 1970 and 1992, and at a time when there was no internet access pretty much throughout, I would have to say, yes, your Honour, that it could well be a factor in a change in his cycle. But he hasn't accessed those sort of materials, it appears, in any shape or form throughout that long period of imprisonment or from 1992 to 2013, nor during the five years that he has been on a supervision order. So in terms of a catch-all, yes, but it could indicate a change.

In terms of matters that might add stress to Mr Kyles in the context in which he has said that he would like to, perhaps, see some reduction of the restrictions, one would have thought that this would not be one of those sorts of matters. I mean, it is a restriction which is an appropriate restriction ... in any event. As you have said, if he came into possession of child exploitation material he would be committing an offence. So in that sense, would I be right to assume that the inclusion of a condition of this kind would not be the sort of restriction that he may have indicated would - may create difficulties for him? --- I agree. I mean, I think he wouldn't find this onerous, in that I don't think it's an issue on his mind. It hasn't appeared to be, and it has not come up as a factor in any of his previous assessments. So, yes, I don't believe he would find it onerous or particularly stressful.

1. Dr Wojnarowska did not have any difficulty with the condition relating to child exploitation material, as she explained in the following exchange:[295]

Now, we've heard earlier that Mr Kyles doesn't have any history of accessing child pornography or similar, so in the context of his case do you see this as being an appropriate or inappropriate condition? --- That's correct. So we don't know what could be the trajectory of his offending should his access to children continue to be strictly monitored. There is obviously a chance that he might resort to child pornography. Historically that has not been the case, but as it was already discussed in this courtroom, at the time when he had access to the community there was no internet and those who were accessing child pornography were doing it from, I think, printed materials. So there is still a risk that that might ...

Eventuate? --- Eventuate in the end, yes, for him.

1. Proposed condition 24 is an additional condition requiring the respondent to report to his supervising CCO and WA Police any direct or indirect contact with the victims of his sexual offending on the next occasion that he reports to the CCO or police. Dr Wynn Owen considered the condition to be 'fine', but thought it was likely captured by a condition requiring the respondent to keep an accurate diary.[296]
2. In my opinion, the condition is appropriate as it is one of the conditions I referred to at [294] above concerning the protection of the respondent's victims.

1. The respondent is currently subject to a condition requiring him to submit to urinalysis or other testing for alcohol or prohibited drugs. The amended draft supervision order contains an additional condition requiring the respondent to provide 'a valid sample for testing'. That is a standard condition designed to prevent conduct intended to circumvent the testing, for instance by taking steps that result in a dilute urine sample that is not suitable for the purposes of obtaining a valid result. No objection was taken to the condition, and I consider it to be appropriate.

1. Proposed condition 32 is in the following terms:

Undergo medical testing or treatment, including anti-depressant medication or anti-libidinal treatment, for paraphilias (sic) as directed by the CCO in consultation with any doctor, psychiatrist or endocrinologist.

1. It is in similar terms to a condition in the current supervision order, except for the addition of the reference to 'anti‑libidinal treatment for paraphilia'. The requirement that the respondent take anti‑depressant medication is appropriate, given that he has been diagnosed with an anxiety disorder and the medication he has been taking for that appears to have been effective. Given that stress is a dynamic risk factor for the respondent, it is an appropriate measure to mitigate his risk of re-offending. While the anti‑depressant may be having an anti-libidinal effect, as described by the respondent to the psychiatrists, that is not the purpose for which it has been described. There is no evidence in these proceedings that the respondent should be considered for any other form of anti-libidinal treatment. I am not satisfied that there is a proper basis for the additional requirement in the condition.

1. Proposed condition 39 is additional and is in the following terms:

Not to go (sic) or remain at any licensed premises unless permitted or required to do so for the following reasons:

(a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;

(b) For a purpose and for a duration approved in advance by a CCO; or

(c) On the order of a CCO or Police Officer.

1. The proposed condition was not the subject of comment from either Dr Wynn Owen or Dr Wojnarowska. Given the ongoing concern that the respondent is at risk of relapsing into alcohol use, a condition that minimises that risk by restricting the circumstances in which he can be on licensed premises would appear to be appropriate. However, if the respondent were to continue to demonstrate that he has the resolve to remain abstinent from the use of alcohol, being able to attend licensed premises such as cafes or restaurants in order to socialise with Ms H or other friends would provide him with further opportunities to reintegrate successfully into the community and to demonstrate that he no longer poses an unacceptable risk of committing a serious sexual offence at the conclusion of the term of the new supervision order. Persons who do not drink alcohol frequent licensed premises for meals or to socialise with associates. There was no evidence in these proceedings that the respondent desires to attend licensed premises, but, as I have understood the evidence, exclusion zones have been used to prevent him from going to places where alcohol is sold. The new condition overcomes the need to identify exclusion zones for that purpose.
2. Even if it is assumed that the respondent has not expressed a desire to attend licensed premises, that may be, at least in part, a consequence of being prevented from attending such premises. In my view, while the proposed condition is appropriate, in light of the fact that relapse into alcohol use remains a significant dynamic risk factor for the respondent, it is also appropriate that there be flexibility in the implementation of the condition for the reasons I have stated in the preceding paragraph. Such flexibility can be achieved by the granting of permission where appropriate in accordance with paragraph (b) of the proposed condition, and by the addition of a proviso in the following terms, which utilises a similar approach to that taken in respect of electronic monitoring under s 19A of the Act:

Provided that the CCO may suspend the operation of this condition in respect of particular licensed premises or licensed premises of a particular kind for such period as the CCO considers appropriate while satisfied that it is not necessary for you to be prohibited from being on such premises for the purpose of ensuring the adequate protection of the community.

1. The latter part of the proviso is to be understood as requiring an evaluation of whether there is a real risk that the respondent would relapse into the use of alcohol if allowed to be on particular licensed premises or licensed premises of a particular kind.
2. Before leaving this topic, I note that neither psychiatrist suggested that consideration should be given to the CCO permitting the respondent to drink alcohol, for instance if the CCO were satisfied he would do so in moderation at a particular social event. Such an approach could give insight into whether the respondent would be at risk of relapsing into alcohol dependence and the risk scenarios identified by the psychiatrists, should he not be subject to a supervision order in the future. However, the evidence in these proceedings, particularly from Dr Wojnarowska, satisfies me that the respondent's past dependence on alcohol puts him at significant risk of abusing alcohol if he were to commence to have a social drink. I have come to the conclusion, therefore, that the condition prohibiting the possession or consumption of alcohol should remain in similar terms to those in the order made by Jenkins J (number 36 in Annexure A to these reasons).

1. Proposed conditions 40 to 44 of the amended draft supervision order largely replicate conditions in the current order intended to prevent the respondent from having contact with children except in limited circumstances. The proposed conditions refer to children under the age of 18 years, whereas the equivalent provisions in the current order refer to children under the age of 16 years. No explanation was provided at the hearing or in written submissions as to why the age should be altered. Having regard to the respondent's history of offending, it is not apparent why it would be thought that he would be at risk of committing a serious sexual offence if he was in contact with a child over the age of 16 years. In my opinion, the current order appropriately limits the prohibitions to circumstances involving children under the age of 16 years. The new order should do the same.
2. Proposed order 43 is additional and is in the following terms (the age being amended to reflect my conclusion in the preceding paragraph):

Not form any domestic, romantic, sexual or otherwise intimate relationship with a person who has children under the age of 16 years in their care either full time or part time, unless approved by the CCO.

1. This is a standard condition in supervision orders for persons with risk profiles that are similar to the respondent's risk profile, and the purpose is self‑evident. It enables the CCO to discuss the circumstances with the respondent and to take such other measures as may be necessary to ensure that the risk of the respondent committing a sexual offence against any such child is adequately mitigated.
2. Although the respondent is in a close relationship with Ms H, the fact that his desire for a sexual relationship has not been reciprocated leaves open the possibility that the respondent will form a relationship of the kind described in the proposed condition with another woman in the future. In such circumstances, I am satisfied the condition is appropriate.

1. Proposed condition 46 is additional and requires the respondent to maintain a daily diary of his movements, activities and associations if and as directed by the CCO, and present the diary to the CCO or any police officer upon request. Although during the latter part of the term of the current supervision order, the respondent has not engaged in behaviour or associated with persons that might elevate his risk of committing a serious sexual offence, the keeping of a diary would have the benefit of enabling closer monitoring of his activities, while at the same time enabling the respondent to demonstrate the progress he has made towards no longer posing an unacceptable risk of committing a serious sexual offence if not subject to a supervision order. I am mindful of the evidence of Dr Wynn Owen that additional constraints or obligations may be counterproductive, but he did not express any concern about the need for the respondent to maintain a diary. Nor did Dr Wojnarowska.
2. I am satisfied that the condition is appropriate, noting that the need for the respondent to maintain a diary will be at the direction of his CCO. It is to be expected that, in exercising the authority to give such a direction, the CCO will have regard to the recommendations that have been made by Dr Wynn Owen and Dr Wojnarowska in these proceedings, as outlined earlier.

(vi) Enticements to children and associations with clubs or groups for children

1. Proposed conditions 49 and 50 are in the following terms:
   1. Whilst in any public place, not be in present possession of any children's toy, game or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
   2. Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
2. While there is no suggestion that the respondent has engaged in conduct of the kind specified in 49 or has done anything to be associated with a club or group of the kind referred to in 50, in my opinion the conditions are appropriate to identify circumstances that would always have been of concern since the respondent has been in the community. They do not unfairly add to the respondent's burden and are necessary as part of a suite of conditions intended to provide adequate protection of the community.

Directions from CCO not to go to or be on particular property or in particular area or location

1. Finally, proposed condition 51 was approached on the basis that it was an additional condition, whereas a comparison with the current supervision order reveals that it is not. In any event, Dr Wynn Owen was asked about the condition, which requires the respondent to comply with any direction given by a CCO not to go to, or be on or in, a particular property, area or location. Dr Wynn Owen said he did not see what the condition would add to the setting of exclusion zones.[297] When questioned about the need for the condition, Ms Comery agreed that it did not add anything to the authority to set exclusion zones and was not necessary. Accordingly, it will not be included.

The views of Dr Wynn Owen and Dr Wojnarowska concerning the conditions generally

1. Apart from the matters to which I have referred specifically, in respect of which either Dr Wynn Owen or Dr Wojnarowska, or both, expressed an opinion, neither took issue with any of the other proposed conditions.

1. I am satisfied that the respondent should be subject to a supervision order consisting of the conditions set out in Annexure A to these reasons, which reflect the proposed conditions in the amended draft supervision order submitted by the applicant with modifications as discussed above. The conditions are the minimum necessary, in my opinion, to ensure the adequate protection of the community.

1. Both Dr Wynn Owen and Dr Wojnarowska were of the view that, if a further supervision order was made, it should be for no more than 5 years.[298]
2. Dr Wynn Owen said that a term of 5 years is desirable because of the research referred to earlier that suggests each five year time frame reduces the likelihood of offending by about 50%. Therefore, it would be expected that, in that timeframe, there would be a significant further reduction of the respondent's risk, approaching that of a person who has never committed a sexual offence.[299]
3. Although Dr Wojnarowska agreed that the term should be up to five years, she noted that at the end of that period the respondent's paedophilia would still be present.[300]
4. I accept the evidence of the experts as to what would be an appropriate term for the new supervision order.
5. The experts were not asked whether the period of five years should be counted from the end of the previous period of five years, of from the time of the hearing. Given Dr Wynn Owen's reasoning, it is obvious he was calculating according to the original period of five years, which ended on 5 June 2018.
6. During submissions, it was submitted on behalf of the respondent that the recommended period should be reduced by one year for the time that had elapsed since the end of the original term as a result of the adjournment of the proceedings, given that the respondent had remained on the supervision order, which had been ordered by Derrick J to continue until these proceedings are determined. It was acknowledged by the applicant that it would be appropriate to make such a reduction, given that the respondent had remained on the original order.
7. Regrettably, more than one year has elapsed since the hearing. During that time the community has been adequately protected by the continuation of the original supervision order, and the respondent has not been disadvantaged, in that the conditions of the original order are comparable to those of the new order. In my opinion, having regard to the opinion expressed by Dr Wynn Owen, I am satisfied that the term of the new supervision order should be reduced by 2 years from the recommended term of 5 years to reflect the fact the respondent has continued to be subject to the original supervision order since 6 June 2018. Consistently with the respondent's history so far, it is to be expected that his risk will have continued to reduce, notwithstanding the fact that his sexual deviance will continue to be part of his psychological make‑up.

1. Section 8(4A) of the Act, under which these proceedings have been brought, provides that the div 2 order made in such an application is to 'take effect on the expiry of the current order'. However, the div 2 order is made under s 17 of the Act. Relevantly, by virtue of the definition of 'Division 2 order' in s 3 of the Act, it means 'a supervision order made under s 17(1)(b)'.
2. Section 17(1)(b) provides that the order made under that provision (a supervision order) is to take effect 'from a stated date not earlier than 21 days after the date the order is made'.
3. Prima facie, there is an inconsistency between s 8(4A) and s 17(1)(b) as to when a new supervision order sought pursuant to s 8(4A) is to commence. That inconsistency was considered by Archer J in The State of Western Australia v Jonsson [No 3].[301] I am indebted to her Honour for her detailed discussion of the legislative history and the relevant principles of statutory construction, which I respectfully adopt. Her Honour referred to the 21 day period referred to in s 17(1)(b) as the '21 day mandate'. Her Honour concluded that, applying the maxim generalia specialibus non derogant (which may be translated as 'the general cannot detract from the specific'), s 17(1)(b) should be construed so that the 21 day mandate does not apply to applications for further supervision orders under s 8(4A).[302] Her Honour gave the following reasons for arriving at that conclusion:[303]

First, there is an inconsistency between s 8(4A) and s 17(1)(b). They cannot be reconciled as a matter of ordinary interpretation. It is not possible to give them both full meaning.

Second, if s 17(1)(b) is not construed in this way, the words in s 8(4A) 'the Division 2 order to take effect on the expiry of the current order' would have no work to do when a further supervision order was made.

Third, s 17(1)(b) can be characterised as a general provision relating to supervision orders, while s 8(4A) can be seen as providing for the specific situation where a further supervision order is sought.

Fourth, not only are the two provisions contained in the same statute, the same amending statute introduced s 8(4A) and amended s 17(1)(b) to include the 21 day mandate. Parliament cannot have intended that the amendment to s 17(1)(b) would deprive the phrase 'the further order to take effect on the expiry of the current order' in s 8(4A) of any effect.

That this was not Parliament's intention is further supported by the purpose of the 21 day mandate in s 17(1)(b) and the purpose of the DSO Act as a whole.

The purpose of the 21 day mandate was to give the authorities time to put the necessary arrangements in place before an offender was released from custody on a supervision order. No time is needed when the offender is already on a supervision order.

The purpose of the DSO Act as a whole is to protect the community. This purpose is met by giving effect to the words in s 8(4A), so that there is no gap in the supervision of a dangerous sexual offender.

1. Having reached that conclusion, her Honour considered the application of s 27A of the Act to enable an interim supervision order to be made in the event that she was not correct in her conclusion.[304] She was satisfied s 27A applied and ultimately made orders to the effect that the new supervision order would commence 21 days after the date of the orders, and that the respondent in that case be subject to the same conditions of the new supervision order for the interim period of 21 days. Her Honour's reasoning was as follows:[305]

Section 27A permits interim supervision orders to be made before final orders are made in proceedings for, relevantly, a further supervision order under s 8(4A). It caters for the three possible scenarios: that a current supervision order may expire before the pending proceedings have been finally determined, that a previous supervision order has expired, and any other case. In each scenario, the court may, at any time in the pending proceedings, make an order that will have the effect of keeping the offender under supervision until the pending proceedings have been finally determined or until another specified date.

On their face, these words are wide enough to permit an order to be made under s 27A that would have effect for a period of 21 days after the pending proceedings have been finally determined. It would be necessary to make such an order before making an order under s 17(1)(b) as, once an order under s 17(1)(b) is made, the proceedings will have been finally determined and the power to make orders under s 27A will no longer be available

1. Her Honour acknowledged that her construction of s 27A (which applies, inter alia, if proceedings under s 8(4A) are pending) had an air of contrivance, but considered it did not do violence to the language of s 27A.[306] In that regard, I note that the Explanatory Memorandum and the second reading speech in respect of the Dangerous Sexual Offenders Legislation Amendment Bill 2017, which introduced s 27A, stated that the new provision would 'also cover the situation that occurred in [Narkle [No 5]]', which was characterised as being 'where a further application against a person under a DSO supervision order is not yet disposed of and the current supervision order is due to expire', in which case it was said that 'an interim supervision order can be sought under this new section 27A'.[307] With respect, that characterisation did not reflect the issue that arose in Narkle [No 5], which I discuss below. That case had reached the point where the application for a further order was 'disposed of', in that a determination was made, and the issue was whether the 21 day mandate applied. Accordingly, I do not consider that the extrinsic materials in respect of s 27A in that regard assist in its construction. However, it is apparent from the materials that the words 'or until another specified date' did allow for the extension of a supervision order beyond the determination of proceedings, which is consistent with the view taken by Archer J.
2. In her discussion of the issue of construction of s 8(4A) and s 17(1)(b) in Jonsson [No 3], Archer J referred to Narkle [No 5].[308] In that case Jenkins J had determined the same issue on the basis of the construction of the relevant provisions that had been agreed upon by the parties.[309] On that construction, the 21 day mandate in s 17(1)(b) applied in the case of a supervision order made on an application under s 8(4A). The words 'to take effect on the expiry of the current order' in s 8(4A) were construed to mean that 'the DPP cannot apply for a further supervision order which would commence during the currency of an original supervision order and thereby achieve an amendment to the terms of an original supervision order'.[310] In that respect, there was not considered to be an inconsistency with the 21 day mandate in s 17(1)(b), although, as both Jenkins J and Archer J noted, that would leave a gap between the making of the further supervision order and its commencement, which was not in the interests of public safety.
3. In Narkle [No 5], although she proceeded on the basis of the agreed construction advanced by the parties, Jenkins J said:[311]

However, that does not mean that I do not think that there are issues with respect to the proper construction of those provisions.

1. I agree with the view of Archer J in Jonsson [No 3] that it is apparent Jenkins J did not purport to resolve the proper construction of the provisions in Narkle [No 5].[312] Accordingly, as Archer J noted, she did not need to be satisfied that Jenkins J was plainly wrong before reaching a different view. In light of the manner in which Archer J ultimately dealt with the matter in Jonsson [No 3], I am left in the same position in respect of both decisions, although her Honour did reach a conclusion with detailed reasons in respect of the construction of the provisions.
2. In my opinion, the construction advanced by the parties in Narkle [No 5] indicates that there is a basis on which the provisions of s 8(4A) and s 17(1)(b) can be reconciled, and the wording of s 8(4A) can have work to do in precluding the commencement of a further supervision order before the current supervision order has expired, albeit resulting in an unsatisfactory situation in which a gap may occur. Further, as Jenkins J noted in Narkle [No 5]:[313]

On any analysis of the statutory provisions, it seems odd that a qualification on the commencement date of a further supervision order was inserted in s 8(4A), which does not contain the power to make the further supervision order. It would have been logical to insert the qualification in s 17(1). If it had been inserted there the possibility of a time gap between the expiration of an original supervision order and the commencement of a further supervision order, which cannot come into effect less than 21 days from when it was made, would have been apparent.

1. Nevertheless, for the reasons outlined by Archer J in Jonsson [No 3], referring to the history of the legislation, the purpose of the Act and the purpose of the 21 day mandate in s 17(1)(b), I agree with her Honour's conclusion that it could not have been intended by the legislature that the 21 day mandate would apply in the case of a further supervision order, which in the interests of public safety should commence immediately the original order expires. The extrinsic materials to which her Honour referred supports that conclusion. Although, I respectfully agree with Jenkins J that it is odd that a qualification on the commencement date of a further supervision order would be inserted in s 8(4A), which does not contain the power to make the further supervision order, nevertheless the qualification must inform the nature of the order that can be made on an application pursuant to s 8(4A).
2. While the words 'to take effect on the expiry of the current order' do have the effect of preventing an order being made before that time, they also have the effect, in their ordinary meaning, of mandating that the effect of the order will commence on the expiry of the current order, not at a later time (i.e. not after the expiry). That is the nature of the order for which an application is made under s 8(4A). While it would have been desirable for the issue of when a further supervision is to commence to be dealt with in s 17(1), as indicated by Jenkins J, I respectfully agree with the conclusion reached by Archer J in Jonsson [No 3] that, having regard to the combined context and effect of s 17(1) and s 8(4A), there is a conflict to be resolved, and it is appropriately resolved by not applying the 21 day mandate to an order made on an application under s 8(4A). In my view, while the availability of an interim detention order under s 27A to bridge any gap may overcome the unsatisfactory outcome identified in Narkle [No 5] and Jonsson [No 3], that does not affect the construction of s 8(4A) and s 17(1)(b).
3. As the materials referred to by Archer J confirm, the 21 day mandate was introduced because, historically, difficulties were encountered in making the appropriate arrangements to move the respondent into approved accommodation and put in place any necessary measures when an order was made without the parties having advance notice of the outcome. Such difficulties do not arise in this case. The respondent will be required to sign the new supervision order, but otherwise he will continue to live in his current accommodation, which has been considered to be suitable for some time, and the current arrangements in terms of his supervision will also continue until there is a need, if any, to change them.
4. As Archer J observed in Jonsson [No 3], there is an air of contrivance in utilising s 27A to overcome the gap created by s 17(1)(b) if her Honour's construction of s 8(4A) and s 17(1)(b) is incorrect. There may well be instances in which it is necessary to order the continuation of a current supervision order or to make an interim supervision order where it is not possible for the new supervision order to take effect immediately on the expiry of the current order. However, where the further supervision order can commence immediately, it would be a contrivance that could not reasonably have been contemplated by the legislature to defer the commencement and fill the gap by an order under s 27A. I do not consider the construction adopted by Archer J in Jonsson [No 3] to be incorrect. It is the construction I adopt.
5. By virtue of the order made by Derrick J continuing the effect of the supervision order made by Jenkins J on 6 June 2013, that supervision order will expire when the proceedings under s 8(4A) are finally determined. The proceedings will be finally determined when final orders are made in the proceedings. The further supervision order should come into effect at that time.

1. At the time of making orders in respect of the preliminary hearing in these proceedings, Derrick J made a suppression order in the following terms:

There is to be no publication outside of the court of the respondent's name or of any material that could lead to the identification of the street address of the respondent's proposed address, or any street address the respondent resides at for the duration of the supervision order.

1. That order was in respect of the continuation of the original supervision order and has continued pending the determination of these proceedings.
2. The applicant submitted that the court should consider making an order extending the suppression order for the duration of any further supervision order. In relation to the respondent's address, it relies on the possibility that there would be publicity of the respondent's address if it were published, and he could be harassed by members of the community who become aware of it and who do not wish to have someone who has been found to be a serious danger to the community to reside in the community or within a particular locality. The possibility is real, as such conduct has occurred in the past. Apart from potential risk to the respondent's safety, such harassment can be counter‑productive to the progress the respondent has made coping in the community, which is a protective factor mitigating his risk of reoffending. Further, the applicant submits that the safety of persons providing support services to the respondent at his address could be put at risk. Finally, if the property is 'compromised' in any of those ways, it would be necessary to find new accommodation, which would be an additional burden. Such accommodation would have to be assessed to be suitable.
3. As for the respondent's name, apart from the possibility that he may be identified and be subject to harassment on that basis, the applicant referred to the evidence in these proceedings concerning the respondent's fear that his friends will find out about his past and his current status and that those friendships will be jeopardised.
4. The applicant did not make an application for a suppression order. Rather, it raised the matter to assist the court in light of matters known to be of concern to COMU and which might subvert any further supervision order made in respect of the respondent. There was no evidence in relation to the view taken by COMU about such matters, as Ms Comery had not taken instructions and was not in a position to assist. Nevertheless, the court is familiar with the issues that have arisen in some other cases and the approach ordinarily taken by COMU. The respondent did not make an application for a suppression order, but I understand him to acquiesce in the submission made by the applicant.
5. The legal principles applicable to the making of a suppression order were concisely stated by Archer J in Jonsson [No 3] in a similar context as the present case as follows (footnotes omitted):[314]

The principles of open justice are well settled. A suppression order should only be made 'if it is really necessary to secure the proper administration of justice in proceedings before it'. Further, there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient'.

1. As a general proposition, I accept that members of the community have a legitimate interest in being aware of the identity and presence of offenders in their community. However, that interest must be balanced against the potential subversion of the viability of a supervision order when such an order is made.
2. Although there is no evidence in respect of this issue, I am satisfied on the basis of previous experience, of which I take judicial notice, that publication of the address of a person who is subject to a supervision order can lead to the difficulties raised by the applicant. I am satisfied that it is necessary to make a suppression order in respect of the respondent's residential address to secure the proper administration of justice in these proceedings. As I noted earlier, the regime under the Act is not aimed at further punishment. Its object is the protection of the community. The protection of the community under a supervision order is achieved by conditions, which involve extensive monitoring and supervision of the respondent. That protection is also achieved by the rehabilitation of an offender in the community while subject to such an order, which significantly mitigates the risk that he will commit a further sexual offence. The availability of suitable accommodation is a critical aspect of enabling a supervision order to work effectively.
3. The suppression order is not made to save the respondent embarrassment. It is to ensure that accommodation that is currently available to the respondent remains available to him. It is necessary to make a suppression order suppressing the respondent's residential address to protect the viability of the suppression order that I will make.
4. However, in relation to the suppression order in respect of the respondent's name, while I understand the respondent's concern that his friends may find out about the proceedings, there is no evidence to suggest that is likely to occur. In any event, in the course of these reasons, I have referred to previous decisions in respect of the respondent in which his name was used. It is not in the interests of justice to redact all references to previous decisions, which are important in understanding the respondent's history. The prior decisions are available on the court's database and would be discovered if a search were made of the respondent's name.
5. I am not satisfied in the circumstances of this case that there is a proper basis for suppressing the respondent's name.
6. A final matter that flows from my decision not to suppress the respondent's name is that it will be appropriate to suppress details in the published version of these reasons that might identify the victims of a number of the respondent's offences. That was the approach taken by Commissioner Sleight in Kyles. There is no public interest in the publication of those details, and there are good reasons to protect the identities of those persons. As there was reference to some of those persons during the hearing, there will also be an order prohibiting publication of any information that might identify those persons.

1. I make the following orders:
   1. Upon the coming into effect of the supervision order referred to in Order 2, the supervision order made by the Hon Justice Jenkins on 6 June 2013 is to cease to have effect.
   2. From 14 July 2020, for a period of 3 years, the respondent, when not in custody, is to be subject to the conditions of the supervision order annexed to these reasons as Annexure A.
   3. There is to be no publication outside of the court of any material that could lead to the identification of the street address or suburb of the respondent's current residential address, or any street address or suburb the respondent resides at for the duration of the supervision order in Order 2.
   4. Information in the court's reasons that is capable of identifying any victim of the respondent's offending is to be suppressed.
   5. There is to be no publication outside of the court of any material that could lead to the identification of any victim of the respondent's offending.

_______________________________________________________________________

The Court, having found pursuant to section 17(1) of the Dangerous Sexual Offenders Act 2006 that the Respondent is a serious danger to the community, orders that the Respondent be the subject of a supervision order pursuant to section 17(1)(b) of the Dangerous Sexual Offenders Act 2006 for a period of 3 years from 14 July 2020, on the following conditions:

1. Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.

1. Report to and receive visits from a Community Corrections Officer as directed by the court.

1. Notify a Community Corrections Officer of every change of your name, place of residence or place of employment at least 2 business days before the change happens.

1. Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).

1. Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.

1. Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.

1. Be subject to electronic monitoring under section 19A.

1. Take up residence at [suppressed], and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

1. Report to and receives visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO.

1. Not commence or change employment, education, training or volunteer work, or commence a business, without the prior approval of the CCO.

1. Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.

1. Report to the Officer-in-Charge of the Sex Offender Management Squad at [suppressed] as directed and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate or authorised person.

1. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.

1. If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.

1. Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle pursuant to condition 14.

1. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you, and all internet user names or identities used by you.

1. Permit a CCO or WA Police to access upon request any computer or device capable of storing digital data (electronic storage device), for the purpose of ascertaining your computer activities.

1. Provide to the CCO or WA Police upon request any passwords, or any other means used to unlock or access any computer or electronic storage device, as may be required for the access described in condition 17.

1. Not delete any data from any computer or electronic storage device in your possession without prior permission from the CCO or WA Police.

1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.

1. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

1. Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact: is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice, Corrective Services; or is conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the victim.

1. Unless contact with victims is permitted pursuant to the previous conditions, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.

1. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to the CCO or Police.

1. Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.

1. Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA).

1. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.

1. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.

1. Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

1. When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.

1. When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

1. Undergo medical testing or treatment, including anti-depressant medication as directed by the CCO in consultation with any doctor, psychiatrist or endocrinologist.

1. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice, Corrective Services.

1. Attend for and comply with all testing, including testing directed without notice, as directed by the CCO on the recommendation of any medical practitioner, psychiatrist, or psychologist, for the purpose of monitoring the effect, on you health or the effect on your risk or re-offending, of any medication prescribed or being taken.

1. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.

1. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.

1. Provide a valid sample for testing pursuant to condition 37.

1. Not be on any licensed premises unless permitted or required to do so for the following reasons:

(a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;

(b) For a purpose and for a duration approved in advance by a CCO; or

Provided that the CCO may suspend the operation of this condition in respect of particular licensed premises or licensed premises of a particular kind for such period as the CCO considers appropriate while satisfied that it is not necessary for you to be prohibited from being on such premises for the purpose of ensuring the adequate protection of the community.

1. Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:

(a) the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;

(b) the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.

(`Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).

1. Where any unsupervised contact with a child under the age of 16 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.

1. Provide details of any contact with a child under the age of 16 years both to your CCO and to the Police on the next working day or on the next occasion you report to that person or agency, whichever occurs first.

1. Not form any domestic, romantic, sexual or otherwise intimate relationship with a person who has children under the age of 16 years in their care either full time or part time, unless approved by the CCO.

1. Report immediately to your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children under the age of 16 years in their care either full time or part time.

1. As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

1. Maintain a daily diary of your movements, activities and associations if and as directed by the CCO, and present this diary to the CCO or any Police Officer upon request.

1. Not conduct computer searches for, nor possess or collect in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images.

(The terms `Children' and 'Child' under this condition and the following condition mean: (a) any person under the age of 16 years; and (b) in the absence of positive evidence as to age, any person apparently under the age of 16 years).

1. Not search for child pornographic images, stories or other articles in the written or typed form with references to child pornography during access to any computer or any other device capable of Internet access.

1. Whilst in any public place, not be in present possession of any children's toy, game or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose.

1. Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.

1. Not go onto the grounds of any school for children under the age of 16 years or loiter around such grounds.

(The 'grounds of a school' under this condition includes the verge on the side of the road which is adjacent to the school property. This condition does not limit the power of a CCO to give a direction for the purpose of condition 51).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Director of Public Prosecutions (WA) v Kyles [2011] WASC 131 (Kyles).

[2] Director of Public Prosecutions (WA) v Kyles [No 2] [2012] WASC 187 (Kyles [No 2]).

[3] Director of Public Prosecutions (WA) v Kyles [No 3] [2013] WASC 242 (Kyles [No 3]).

[5] Kyles [No 3] [48], point number (2).

[6] A supervision order is a 'Division 2 order', as that term is defined in the Act, so that an application for such an order is a div 2 hearing. See [13] - [14] below.

[7] The State of Western Australia v Kyles [2018] WASC 86 [64] (The State of WA v Kyles).

[8] The State of WA v Kyles [65] ‑ [67].

[9] The State of WA v Kyles [65] ‑ [67].

[10] Section 17 is in Division 2 of the Act.

[11] See s 19(2), s 20(1)(a), s 41(2), s 41(3) and s 42(2). See also s 27A, where the reference to 'offender' in s (5) appears to be in a context other than where the person the subject of pending proceedings is or has been subject to a supervision order.

[13] Hansard, 17 May 2016, Legislative Assembly, p3070c-3072a, second reading of Dangerous Sexual Offenders Legislation Amendment Bill 2015, where the Minister for Police stated that the bill 'amends the DSO act and related legislation to improve the ability of authorities to manage, and so to adequately protect the community from, known dangerous sexual offenders'. The Minister went on to say, '... there will be new powers to allow the court to make a subsequent supervision order on the expiry of a supervision order.' See also the Explanatory Memorandum for the bill, which contained a similar preamble and stated that the proposed s 8(4A) and s 8(4) 'allow the court to make a further supervision order which is to take effect on the expiry of a supervision order. This will in effect mean that a new application can be brought to have the effect of extending the duration of a supervision order.'

[14] The State of Western Australia v Narkle [No 5] [2017] WASC 46 [8] ‑ [24] (Narkle [No 5]).

[15] Dangerous Sexual Offenders Legislation Amendment Act 2017 (No 21 of 2017).

[16] Hansard, 14 September 2017, Legislative Council, p4072b-4073a, second reading of Dangerous Sexual Offenders Legislation Amendment Bill 2017.

[17] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).

[19] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [66] (Wheeler JA, Owen JA agreeing); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (GTR) [14] ‑ [25] (Steytler P & Buss JA), [94] and [97] (Murray AJA).

[21] GTR [28] ‑ [34] (Steytler P & Buss JA).

[23] GTR [26] ‑ [27] (Steytler P & Buss JA), [126] ‑ [129] (Murray AJA).

[26] Although the respondent was an adult, the matter was dealt with in the Children's Court because the victim was a child, in accordance with procedure at the time.

[27] Report of Dr Wynn Owen, 2 April 2019, page 7: Book of Materials (BoM) page 445.

[61] The supervision order was annexed to Kyles [No 3].

[62] BoM pp 430 ‑ 431 (Community Supervision Assessment Report).

[64] BoM p 416 ([12] of Dr Yewers' report).

[65] BoM p 416 ([12] of Dr Yewers' report). The reference to the respondent's 'partner' is to Ms H, with whom the respondent has had a long relationship, which, as I mentioned at [54] above and will discuss further below, is not a sexual relationship, and is best described as a friendship.

[66] BoM pp 344 ‑ 345 (transcript of proceedings before Magistrate Randazzo, 8.5.2017, pp 23 ‑ 24).

[67] BoM p 415 ([8] of Dr Yewers' report).

[68] BoM p 415 ([8] of Dr Yewers' report).

[69] BoM p 415 ([8] of Dr Yewers' report).

[70] BoM p 416 ([13] of Dr Yewers' report).

[71] BoM p 416 ([13] of Dr Yewers' report).

[73] BoM pp 414 - 415 ([5] of Dr Yewers' report).

[74] BoM p 414 ([5] of Dr Yewers' report).

[75] BoM pp 414 ‑ 415 ([5] of Dr Yewers' report).

[76] BoM p 415 ([5] of Dr Yewers' report).

[77] BoM p 415 ([5] of Dr Yewers' report).

[78] BoM p 415 ([5] of Dr Yewers' report).

[79] BoM p 415 ([7] of Dr Yewers' report).

[80] [95].

[81] BoM p 415 ([7] of Dr Yewers' report).

[82] BoM p 415 ([7] of Dr Yewers' report).

[83] BoM pp 415 ‑ 416 ([9] of Dr Yewers' report).

[84] BoM p 418 ([23] of Dr Yewers' report).

[85] BoM p 418 ([24] of Dr Yewers' report).

[86] BoM p 419 ([25] of Dr Yewers' report).

[87] BoM p 419 ([25] of Dr Yewers' report).

[88] BoM p 419 ([26] of Dr Yewers' report).

[89] BoM p 419 ([26] of Dr Yewers' report).

[90] BoM p 419 ([27] of Dr Yewers' report).

[91] BoM p 419 ([28] of Dr Yewers' report).

[92] BoM p 419 ([29] of Dr Yewers' report).

[93] BoM p 419 ([29] of Dr Yewers' report).

[94] BoM p 421 ([36] of Dr Yewers' report).

[95] BoM p 421 ([38] of Dr Yewers' report).

[132] Email from Dr Wynn Owen to the DPP dated 5 April 2019

[135] Ts 35; BoM 460.

[150] See [155] above.

[152] BoM p 485 (Dr Wojnarowska's report).

[176] BoM p 456 (Dr Wynn Owen's report).

[183] [141] ‑ [145] (sexual deviance); [173] ‑ [181] (alcohol dependence).

[184] See [145] above.

[185] See [58] above.

[186] Ts 30 (Dr Wynn Owen) and ts 62 (Dr Wojnarowska).

[200] BoM p 457 (Dr Wynn Owen's report).

[235] Ts 44 - 45 (Dr Wynn Owen); ts 77 (Dr Wojnarowska).

[239] See [163] above.

[244] Ts 44 (Dr Wynn Owen); ts 76 (Dr Wojnarowska).

[268] See the reference to Williams above at [36].

[269] Italiano v The State of Western Australia [2009] WASCA 116 (Italiano) [4] and [6] (Pullin JA).

[275] Hart [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113].

[279] Ts 52 ‑ 53; see also the views of Dr Yewers at [116] - [117] above.

[292] Condition no. 28 in Annexure A to these reasons.

[301] The State of Western Australia v Jonsson [No 3] [2019] WASC 463 (Jonsson [No 3]) [105] ‑ [136].

[302] Jonsson [No 3] [128] ‑ [129].

[303] Jonsson [No 3] [130] ‑ [136].

[305] Jonsson [No 3] [138] ‑ [139].

[307] Hansard, 14 September 2017, Legislative Council, p 4072b-4073a, second reading of Dangerous Sexual Offenders Legislation Amendment Bill 2017.

[308] State of Western Australia v Narkle [No 5] [2017] WASC 46 (Narkle [No 5]).

[314] Jonsson [No 3] [147], referring to Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 [8].